IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 96-50269
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RAMON ALBERTO PADILLA-GALLARDO,
a.k.a. Danny Sabalas
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. A-95-CR-190
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October 24, 1996
Before POLITZ, Chief Judge, and JOLLY and HIGGINBOTHAM, Circuit Judges.
PER CURIAM:*
Ramon Alberto Padilla-Gallardo appeals the sentence imposed
subsequent to his plea of guilty to reentry into the United
States after deportation. Padilla-Gallardo first argues that the
district court erred in using the statutory maximum of 18 U.S.C.
§ 1326(b)(2) because the indictment did not allege that his
deportation had been subsequent to the commission of an
*
Pursuant to Local Rule 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that this opinion should not be published and is not precedent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 Local Rule
47.5.4.
No. 96-50269
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aggravated felony. Title 18 U.S.C. § 1326(b) is a sentence
enhancement provision rather than an independent criminal
offense; thus, it need not be alleged in the indictment. United
States v. Vasquez-Olvera, 999 F.2d 943, 945 (5th Cir. 1993), cert
denied, 510 U.S. 1076 (1994). In his reply brief, Padilla-
Gallardo invites the court to reconsider its decision in Vasquez-
Olvera en banc. We decline to consider the request as it is
untimely under Rule 35 of the Federal Rules of Civil Procedure
and does not comply with this court’s local rules. See 5th Cir.
R. 35.2.
Padilla-Gallardo next argues that the court erred in denying
him a two-level reduction for acceptance of responsibility. It
was not clear error for the district court to determine that
Padilla-Gallardo’s statements to an INS agent and other behavior
were inconsistent with his acceptance of responsibility.
U.S.S.G. § 3E1.1, comment. (n.3).
AFFIRMED.
United States v. Padilla-Gallardo
Combined Opinion