IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-20804
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
VICTOR MANUEL MONTES-MANZANO,
also known as Victor Manual Montes Manzano,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-00-CR-172-1
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April 11, 2001
Before JOLLY, HIGGINBOTHAM, and JONES, Circuit Judges.
PER CURIAM:*
Victor Manuel Montes-Manzano (Montes) appeals the 41-month
sentence imposed following his guilty plea to a charge of being
found present in the United States after deportation, a violation
of 8 U.S.C. § 1326. Relying on Apprendi v. New Jersey, 530 U.S.
466 (2000), Montes argues that the aggravated-felony conviction
that resulted in his enhanced sentence under 8 U.S.C.
§ 1326(b)(2) was an element of the offense that should have been
alleged in the indictment. As Montes acknowledges, however, his
*
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that this opinion should not be published and is not precedent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. 00-20804
-2-
argument remains foreclosed by Almendarez-Torres v. United
States, 523 U.S. 224 (1998). See United States v. Dabeit, 231
F.3d 979, 984 (5th Cir. 2000)(stating that Apprendi did not
overrule Almendarez-Torres), cert. denied, 121 S. Ct. 1214
(2001).
Montes also challenges a sixteen-level increase to his base
offense level pursuant to U.S.S.G. § 2L1.2(b)(1)(A).
Specifically, Montes argues that his prior Texas conviction for
possession of less than one gram of cocaine does not qualify as
an “aggravated felony” for purposes of § 2L1.2. Montes’
argument, however, is foreclosed by our decision in United States
v. Hinojosa-Lopez, 130 F.3d 691, 693-94 (5th Cir. 1997). Montes
maintains that this issue is not foreclosed by Hinojosa-Lopez
because he raises it as a rule-of-lenity argument. “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 follows from the interpretation
reached by this court in Hinojosa-Lopez that the term “aggravated
felony” is not so ambiguous as to require an application of the
rule of lenity. See Hinojosa-Lopez, 130 F.3d at 693-94.
AFFIRMED.