IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-40596
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
REFUGIO REYES-ALDAVA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. B-98-CR-66-1
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May 6, 1999
Before DAVIS, DUHE’, and PARKER, Circuit Judges.
PER CURIAM:*
Refugio Reyes-Aldava appeals his sentence after conviction
for being illegally present in the United States after having
been previously deported in violation of 8 U.S.C. § 1326(a) and
(b)(2). Reyes-Aldava contends for the first time on appeal that
the district court erred when it enhanced his sentence pursuant
to U.S.S.G. § 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
*
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that this opinion should not be published and is not precedent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. 98-40596
-2-
was not raised in the district court, we review it for plain
error only. See United States v. Spires, 79 F.3d 464, 465 (5th
Cir. 1996); United States v. Knowles, 29 F.3d 947, 950-51 (5th
Cir. 1994). This court does not follow contrary authority from
other circuits. See, e.g., United States v. Tabacca, 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)).
Whether the vagueness doctrine applies to sentencing
statutes which merely pertain to “the statutory range [within
which] the guideline sentence will fall” is dubious. United
States v. Pearson, 910 F.2d 221, 223 (5th Cir. 1990). As such,
the district court’s enhancement of Reyes-Aldava’s sentence based
on his aggravated felony which falls under the purview of
§ 1101(a)(43) was not plain error. Reyes-Aldava’s substantial
rights are not affected; nor does his sentence reflect adversely
on the fairness, integrity or public reputation of judicial
proceedings.
AFFIRMED.