United States v. Sotelo-Barrera ( 2001 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 00-40747
Summary Calendar
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FELIPE SOTELO-BARRERA,
Defendant-Appellant.
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Appeal from the United States District Court for the
Southern District of Texas
USDC No. L-00-CR-101-1
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April 23, 2001
Before JOLLY, BARKSDALE, and DENNIS, Circuit Judges.
PER CURIAM:*
Felipe Sotelo-Barrera appeals his sentence following a guilty
plea to illegal entry after deportation pursuant to 8 U.S.C.
§ 1326(b)(2).
We review the district court's application of the Sentencing
Guidelines de novo and its factual findings for clear error. See
United States v. Stevenson, 126 F.3d 662, 664 (5th Cir. 1997).
Sotelo first contends that his sentence should be vacated
because his state felony conviction for possession of a controlled
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
substance, which resulted in an increased sentence under 8 U.S.C.
§ 1326(b)(2), was an element of the offense that should have been
charged in the indictment.
Sotelo acknowledges that his argument is foreclosed by the
Supreme Court’s decision in Almendarez-Torres v. United States, 523
U.S. 224 (1998), but he seeks to preserve the issue for Supreme
Court review in the light of the decision in Apprendi v. New
Jersey, 530 U.S. 466 (2000).
Apprendi did not overrule Almendarez-Torres. See Apprendi,
120 S.Ct. at 2362; United States v. Dabeit, 231 F.3d 979, 984 (5th
Cir. 2000), cert. denied, No. 00-8299, 2001 WL 77067 (U.S. Feb. 26,
2001). Sotelo’s argument is foreclosed.
Sotelo also challenges the characterization of his prior Utah
conviction for cocaine possession as an "aggravated felony" offense
and the concomitant sixteen-level increase in his base offense
level under U.S.S.G. § 2L1.2(b)(1)(A), contending that his sentence
should be reduced by the rule of lenity. Sotelo’s constitutional
claim that the rule of lenity is applicable is reviewed de novo.
United States v. Romero-Cruz, 201 F.3d 374, 377 (5th Cir.), cert.
denied, 120 S.Ct. 2017 (2000).
In United States v. Hinojosa-Lopez, 130 F.3d 691, 692-93, 694
(5th Cir. 1997), we held that a state conviction is an “aggravated
felony” pursuant to § 2L1.2(b)(1)(A) if “(1) the offense was
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punishable under the Controlled Substances Act and (2) it was a
felony” under applicable state law. Id. at 694. Sotelo has not
explicitly disputed that, as a matter of statutory construction,
his challenge to the § 2L1.2(b)(1)(A) increase is foreclosed by
Hinojosa-Lopez. See United States v. Garcia Abrego, 141 F.3d 142,
151 n.1 (5th Cir. 1998) (“in the absence of any intervening Supreme
Court or en banc circuit authority that conflicts” with the panel
decision in question, this court is bound by the panel decision).
He contends, however, that, under the “constitutional rule-of-
lenity,” his objection to the increase presents an issue of first
impression. This contention is erroneous.
The rule of lenity fosters the constitutional due process
principle “that no individual be forced to speculate, at peril of
indictment, whether his conduct is prohibited." Dunn v. United
States, 442 U.S. 100, 112 (1979). “The rule of lenity ... applies
only when, after consulting traditional canons of statutory
construction, [a court is] left with an ambiguous statute.” United
States v. Shabani, 513 U.S. 10, 17 (1994) (emphasis added). It
applies “only if after a review of all applicable sources of
legislative intent the statute remains truly ambiguous”. United
States v. Cooper, 966 F.2d 936, 944 (5th Cir. 1992) (internal
quotation marks and citation omitted); see also Albernaz v. United
States, 450 U.S. 333, 342 (1981) (“The rule comes into operation at
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the end of the process of construing what Congress has expressed,
not at the beginning as an overriding consideration of being
lenient to wrongdoers.” (internal quotation marks and citation
omitted)). The rule of lenity is a rule of statutory construction,
see Bifulco v. United States, 447 U.S. 381, 387 (1980); United
States v. Brito, 136 F.3d 397, 408 (5th Cir. 1998), rather than a
separate constitutional framework for raising claims. We have
already expressed our interpretation of the term “aggravated
felony” in our decision in Hinojosa-Lopez. See Hinojosa-Lopez, 130
F.3d at 693-94.
The judgment of the district court is
A F F I R M E D.
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