UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
___________________
No. 99-51197
___________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FELIPE NAVA-PEREZ, also known as
Mario Lugo-Rodriguez, also known
as Jimmy De La Fuente, also known
as Jimmy De La Fuentes, also known as
Mario Lugo, also known as Mario R. Lugo,
also known as Mario Hugo, also known
as Mario Rodriguez, also known as
Jimmy DeLaFuente, also known as Mario Lug,
Defendant-Appellant.
____________________________________________________________
Appeal from the United States District Court
for the Western District of Texas
____________________________________________________________
February 12, 2001
Before WIENER, BARKSDALE, and EMILIO M. GARZA, Circuit Judges.
RHESA HAWKINS BARKSDALE, Circuit Judge:
The sole issue on appeal is whether Felipe Nava-Perez, an
alien, is subject to the imposed enhanced penalty, under 8 U.S.C.
§ 1326(b)(2), for removal “subsequent to a conviction for
commission of an aggravated felony”, based upon the following:
after having been deported (equivalent to being removed), he
reentered the United States illegally; was convicted for an
aggravated felony; was removed pursuant to the summary removal
procedure set forth in 8 U.S.C. § 1231(a)(5) (“prior order of
removal is reinstated from its original date”); reentered the
United States once again; and was convicted for illegal reentry, in
violation of 8 U.S.C. § 1326. We AFFIRM.
I.
Nava-Perez was deported from the United States in July 1997.
He reentered the United States illegally; in September 1998, he was
convicted for an aggravated felony in Texas (cocaine possession).
Following that conviction, his 1997 deportation order was
reinstated pursuant to 8 U.S.C. § 1231(a)(5); in May 1999, he was
deported — for the second time. Less than two months later, he was
again found in the United States.
As a result, Nava-Perez was indicted on one count of illegal
reentry, in violation of 8 U.S.C. § 1326. In addition, the
Government filed a notice of enhanced penalty, pursuant to 8 U.S.C.
§ 1326(b)(2) (increasing statutory maximum sentence to 20 years for
“any alien ... whose removal was subsequent to a conviction for
commission of an aggravated felony”). Nava-Perez pleaded guilty.
The Presentence Investigation Report assigned a base offense
level of 8. Because of Nava-Perez’s prior aggravated felony
conviction, his offense level was increased by 16 levels, pursuant
to U.S.S.G. § 2L1.2(b)(1)(A) (16-level increase for unlawfully
reentering United States after having been deported following
aggravated felony conviction). He received a three-level
2
adjustment for acceptance of responsibility, resulting in a total
offense level of 21. With a criminal history category of VI, the
guideline sentencing range was 77 to 96 months. Nava-Perez’s
objection to the 16-level increase was overruled; he was sentenced
to 77 months imprisonment.
II.
Nava-Perez contests the enhancement. In a supplemental brief,
relying on Apprendi v. New Jersey, 530 U.S. 466 (2000), he also
maintains: the enhancement violated due process because the
indictment failed to allege a prior conviction; and, without that
conviction, his sentence exceeds the statutory maximum for illegal
reentry.
A.
The statutory maximum sentence for illegal reentry is two
years. 8 U.S.C. § 1326(a). But, as noted, the maximum is
increased to 20 years for “any alien ... whose removal was
subsequent to a conviction for commission of an aggravated felony”.
8 U.S.C. § 1326(b)(2) (emphasis added). The Sentencing Guidelines
implement that provision by specifying a 16-level increase in the
offense level for unlawful reentry into the United States after
having been deported following a criminal conviction for an
aggravated felony. U.S.S.G. § 2L1.2(b)(1)(A).
Nava-Perez maintains he is not subject to the enhancement,
claiming his second removal, in 1999, was effective in 1997, before
3
his commission of the aggravated felony in 1998. As stated, Nava-
Perez’s second removal in May 1999, after his 1998 aggravated
felony conviction, was accomplished pursuant to 8 U.S.C. §
1231(a)(5):
If the Attorney General finds that an alien
has reentered the United States illegally
after having been removed or having departed
voluntarily, under an order of removal, the
prior order of removal is reinstated from its
original date and is not subject to being
reopened or reviewed, the alien is not
eligible and may not apply for any relief
under this chapter, and the alien shall be
removed under the prior order at any time
after the reentry.
8 U.S.C. § 1231(a)(5) (emphasis added).
The plain language of that section, according to Nava-Perez,
means that, by operation of law, 1997 was the effective date of his
second removal, even though it occurred in 1999, because the second
removal was based on the reinstated 1997 removal order. Therefore,
he claims, his removal in 1999 was not subsequent to his 1998
aggravated felony. Alternatively, Nava-Perez contends that, if we
determine the statute is ambiguous, the rule of lenity requires our
holding the enhancement inapplicable.
The district court’s interpretation of § 1231(a)(5), as well
as its application of the Sentencing Guidelines, are reviewed de
novo. E.g., United States v. Norris, 217 F.3d 262, 273 (5th Cir.
2000) (Sentencing Guidelines); United States v. Rasco, 123 F.3d
4
222, 226 (5th Cir. 1997), cert. denied, 522 U.S. 1083 (1998)
(statutory interpretation).
Contrary to Nava-Perez’s interpretation of § 1231(a)(5), it
does not treat the alien’s removal as effective “from its original
date”. Instead, it provides: “the prior order of removal is
reinstated from its original date”. 8 U.S.C. 1231(a)(5) (emphasis
added). It authorizes removal under the prior order “at any time
after the reentry”. Id. (emphasis added). In short, the statute
plainly contemplates, after the reentry, a second removal, under
the reinstated prior order.
Nava-Perez confuses reinstatement of the “order of removal”
with his actual removal under that reinstated order. He was
removed twice: once in 1997, and again in 1999, after his 1998
aggravated felony conviction. Although both removals are based on
the same 1997 order, with the second being based on the order’s
reinstatement, they are, nevertheless, separate removals. Because
the 1999 removal was subsequent to 1998, when Nava-Perez committed
an aggravated felony, he was subject to the enhanced penalty
pursuant to the plain, unambiguous language of § 1326(b)(2) and
U.S.S.G. § 2L1.2(b)(1)(A).
B.
Nava-Perez contends that, under Apprendi, his sentence
violated due process because it exceeded the two-year maximum
punishment for the offense charged. He concedes this contention is
5
foreclosed by Almendarez-Torres v. United States, 523 U.S. 224
(1998) (8 U.S.C. § 1326(b)(2) is penalty provision and does not
define separate crime; therefore, prior conviction supporting
sentence enhancement does not have to be charged in indictment),
but maintains Apprendi has cast Almendarez-Torres into serious
doubt.
As Nava-Perez recognizes, we cannot overrule Supreme Court
precedent. Instead, he raises the issue to preserve it for
possible review by the Supreme Court.
III.
For the foregoing reasons, the judgment is
AFFIRMED.
6