IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-40510
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
versus
MOISES CORDERO-GODINEZ,
Defendant-Appellee.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. M-97-CR-374-1
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March 9, 1999
Before HIGGINBOTHAM, JONES, and DENNIS, Circuit Judges.
PER CURIAM:*
Moises Cordero-Godinez was convicted for attempting
illegally to enter the United States after having been previously
deported in violation of 8 U.S.C. § 1326(a). Cordero has appealed
his sentence, which was enhanced under 8 U.S.C. § 1326(b)(2).
Cordero contends for the first time on appeal that the district
court erred in enhancing Cordero’s sentence pursuant to
§ 2L1.2(b)(1)(A) because the definition of “aggravated felony” in
8 U.S.C. § 1101(a)(43)(G) is unconstitutionally vague as applied to
him. Because this issue was not raised in the district court, we
*
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this opinion should not be published and is not precedent except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.
No. 98-40510
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review it for plain error only. See United States v. Spires, 79
F.3d 464, 465-66 (5th Cir. 1996); see also United States v.
Knowles, 29 F.3d 947, 950-51 (5th Cir. 1994) (alleged constitu-
tional error in criminal conviction reviewed for plain error).
This court does not follow contrary authority from other circuits.
see, e.g., U.S. v. Tabocca, 924 F.2d 906, 912 (9th Cir. 1991). To
demonstrate plain error, an appellant must show clear or obvious
error that affects his substantial rights; if he does, this court
has discretion to correct a forfeited error that seriously affects
the fairness, integrity, or public reputation of judicial
proceedings, but is not required to do so. United States v.
Calverley, 37 F.3d 160, 162-64 (5th Cir. 1994) (en banc) (citing
United States v. Olano, 507 U.S. 725, 730-35 (1993)).
The Federal Public Defender does no service to the courts
or its client when it raises issues like this for the first time on
appeal. Bound as we are by Olano, we are not required to express
a view on the merits of appellant’s challenge except to note that
it is highly dubious that the vagueness doctrine applies to
sentencing statutes that merely pertain to “the statutory range
[within which] the guideline sentence will fall.” United States v.
Pearson, 910 F.2d 221, 223 (5th Cir. 1990). Moreover, there is no
adverse effect on this appellant’s substantial rights, nor does his
sentence reflect adversely on the fairness, integrity or public
adversely perception of judicial proceedings.
AFFIRMED.