UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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02-50079
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAIME SOLIS-CAMPOZANO,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Western District of Texas
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November 12, 2002
Before DAVIS and BARKSDALE, Circuit Judges, and AFRICK, District
Judge*.
RHESA HAWKINS BARKSDALE, Circuit Judge:
This appeal is from a sentence imposed under Sentencing
Guidelines § 2L1.2(b)(1)(A)(vii)(2001) (16 level enhancement to
offense level if defendant previously deported for “alien smuggling
offense”). Primarily at issue is whether Jaime Solis-Campozano’s
prior conviction for transporting aliens within the United States
constitutes the requisite “alien smuggling offense” for the
enhancement. AFFIRMED.
*
District Judge of the Eastern District of Louisiana,
sitting by designation.
I.
In September 2001, Solis-Campozano (Solis) pleaded guilty to
one count of illegally reentering the United States, in violation
of 8 U.S.C. § 1326(a), (b)(1). See 8 U.S.C. § 1326(b) (increased
sentence if alien earlier deported after felony conviction). He
was sentenced in January 2002 to, inter alia, 37 months’
imprisonment. In so doing, and pursuant to Guidelines §
2L1.2(b)(1)(A)(vii), the district court increased Solis’ offense
level by 16 because he had been earlier deported (in 2000), after
being convicted for transporting illegal aliens for profit, in
violation of 8 U.S.C. 1324(a)(1)(A)(ii).
II.
Solis presents two issues: whether “transporting” aliens
within the United States is an “alien smuggling offense” for
purposes of the Guideline at issue; and whether, in the light of
Apprendi v. New Jersey, 530 U.S. 466 (2000), his sentence violates
due process. A district court’s interpretation of the Sentencing
Guidelines is reviewed de novo. E.g., United States v. Cervantes-
Nava, 281 F.3d 501, 506 (5th Cir.), cert. denied, 122 S. Ct. 2379
(2002) .
A.
Guidelines § 2L1.2(b)(1)(A)(vii), as amended in 2001,
provides: “If the defendant previously was deported ... after ...
a conviction for a felony that is ... an alien smuggling offense
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committed for profit, increase [offense level] by 16....”
(Emphasis added.) Unlike other prior convictions for which the
enhancement is applied under subpart (b)(1), such as “a drug
trafficking offense” or “a firearms offense”, “an alien smuggling
offense” is not defined by the Guideline. See U.S.S.G. § 2L1.2,
cmt. n.1 (B)(iii), (v) (2001).
Under the pre-2001 version of § 2L1.2(b)(1)(A), the 16 level
enhancement required the prior conviction to have been an
“aggravated felony”, as defined at 8 U.S.C. § 1101(a)(43)(N). See
U.S.S.G. § 2L1.2, cmt. n.1 (2000). That statutory definition
includes “an offense described in ... [8 U.S.C. § 1324(a)](1)(A) or
(2) ... (relating to alien smuggling)”. 8 U.S.C. § 1101(a)(43)(N)
(emphasis added).
Again, Solis’ prior conviction was for transporting illegal
aliens for profit in violation of 8 U.S.C. § 1324(a)(1)(A)(ii).
Our court has not held that such transportation is an alien
smuggling offense; we have noted, however, that it is related to
alien smuggling. See United States v. Monjaras-Castaneda, 190 F.3d
326 (5th Cir. 1999), cert. denied, 528 U.S. 1194 (2000).
Solis contends: (1) the plain language of §
2L1.2(b)(1)(A)(vii) does not include “transporting” offenses; (2)
Monjaras-Castaneda does not support the conclusion that
“transporting” is “alien smuggling”; (3) “smuggling” and
“transporting” are distinguished elsewhere in the guidelines and
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statutes; and (4) pursuant to the rule of lenity, any ambiguity in
the Guidelines must be resolved in his favor.
1.
In determining whether “an alien smuggling offense”, as used
in the Guideline, encompasses transporting aliens within the United
States, the words of the Guideline are, of course, accorded their
ordinary (plain) meaning. E.g., United States v. Lyckman, 235 F.3d
234, 238 (5th Cir. 2000), cert. denied, 532 U.S. 986 (2001). No
authority need be cited for the rule that such plain meaning
controls, unless it leads to an absurd result.
Black’s Law Dictionary defines “smuggling” as “the crime of
importing or exporting illegal articles”. BLACK’S LAW DICTIONARY 1394
(7th ed. 1999). Webster’s Ninth New Collegiate Dictionary
similarly defines the term; but, it also offers another definition:
“to convey or introduce surreptitiously”. WEBSTER’S NINTH NEW
COLLEGIATE DICTIONARY 1114 (1990). In short, the plain meaning of
“smuggling” is not limited to “importing” and “exporting”.
This is particularly true in the context of “alien smuggling”.
Monjaras-Castaneda stated: “The phrase ‘relating to alien
smuggling’ [in 8 U.S.C. § 1101(a)(43)(N)] does describe the
offenses in § 1324(a). All involve the transportation, movement,
and hiding of aliens into and within the United States”. 190 F.3d
at 330 (emphasis added). Accordingly, “an alien smuggling offense”
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as used in the Guideline includes transporting aliens within the
United States.
Solis maintains, however, that Monjaras-Castaneda does not
support treating “transporting aliens” as “an alien smuggling
offense”. There, under the pre-2001 version of the Guidelines,
defendant contested a sentence enhancement due to a previous
conviction for transportation of aliens. He contended that the
parenthetical in the applicable definition in § 1101(a)(43)(N) —
“relating to alien smuggling” — limited the scope of an aggravated
felony under § 1324(a)(1)(A) or (2) to those that relate to alien
smuggling. As noted, our court stated that the parenthetical was
meant to be descriptive of the general content of § 1324(a)(1)(A)
and (2), not a limitation on the offenses described in them. 190
F.3d at 331. Because the transportation of aliens was related to
alien smuggling, our court held the enhancement was proper. Id. at
330.
Again, Monjaras-Castaneda compels the conclusion that,
pursuant to the plain meaning of the Guideline at issue,
“transporting aliens” is an “alien smuggling offense” for purposes
of the Guideline. Restated, the Guideline includes Solis’ prior
“transporting” conviction.
In holding that the plain meaning controls, we reject Solis’
reliance on the use of the term “smuggling” in other guidelines.
Sections 2L1.1(b)(1), (2) impose enhancements “[i]f the offense
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involved the smuggling, transporting, or harboring of ... aliens”.
Solis contends that this section, immediately preceding the one at
issue, § 2L1.2, demonstrates that “transporting” is not
“smuggling”.
As noted, we disagree. First, § 2L1.1 does not speak of “an
alien smuggling” offense, or of an “alien transporting” offense; it
speaks of “smuggling, transporting, or harboring ... aliens”. See
U.S.S.G. § 2L1.1(b)(2). Second, the Guideline at issue, § 2L1.2,
does not even mention “transporting” or “harboring” aliens,
although such conduct equates with “smuggling” aliens; instead, it
speaks only in general of “an alien smuggling offense”, not the
“offense of alien smuggling”. See U.S.S.G. § 2L1.2 (b)(1)(A)(vii).
This is the point brought home by our court’s decision in Monjaras-
Castaneda.
Notwithstanding our holding that the plain meaning of the
Guideline controls, we note that Solis cites 8 U.S.C. §
1227(a)(1)(E)(i) for the contention that “transporting” is not a
smuggling offense. Section 1227(a)(1) establishes classes of
aliens removable upon order of the Attorney General. One of these
classes is defined in subsection (E), “smuggling”. The statute
allows the deportation of aliens who “knowingly ... encouraged,
induced, assisted, abetted, or aided any other alien to enter or
try to enter the United States in violation of law”. 8 U.S.C. §
1227(a)(1)(E) (2002) (emphasis added). See also 8 U.S.C. § 1182
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(a)(6)(E)(i) (defining alien “smugglers” who are not eligible for
visas).
Concerning Solis’ references to other guidelines and statutes,
the Government responds that those references are not as persuasive
as the language in the earlier-referenced 8 U.S.C. § 1324(a)(1)(A).
As discussed, the pre-amendment § 2L1.2, through the definition in
8 U.S.C. § 1101(a)(43)(N), referenced § 1324(a)(1)(A) when
describing offenses “related to alien smuggling”. (Again, Solis’
prior “transporting” conviction was pursuant to 8 U.S.C. §
1324(a)(1)(A)(ii).)
Section 1324(a)(1)(A) proscribes bringing aliens into the
United States, as well as transporting them once here. The
Government notes that the word “smuggling” is not used in §
1324(a)(1)(A). Therefore, it contends, each of the various
offenses listed in that subpart — bringing to, transporting, etc.
— is “an alien smuggling offenses” for purposes of the Guideline at
issue — § 2L1.2(b)(1)(A)(vii). We agree.
Other circuits have held that § 1324(a)(1)(A) defines a
general class of alien smuggling offenses. United States v.
Sanchez-Vargas, 878 F.2d 1163, 1169 (9th Cir. 1989), held all of
the offenses enumerated in § 1324(a)(1)(A) are smuggling offenses.
(“§ 1324(a)(1) now presents a single comprehensive ‘definition’ of
the federal crime of alien smuggling”). See also United States v.
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Salas-Mendoza, 237 F.3d 1246, 1247 (10th Cir. 2001)(adopting Ninth
Circuit’s language).
2.
Solis urges that, to the extent there is ambiguity, the rule
of lenity should be applied. See, e.g., United States v.
Granderson, 511 U.S. 39, 54 (1994). There is no ambiguity.
B.
As noted, Solis was convicted of illegally reentering the
United States, in violation of 8 U.S.C. § 1326. He contends that
his sentence pursuant to 8 U.S.C. § 1326(b) (earlier deported after
felony conviction) violates due process because the prior felony
conviction is an element that was not alleged in the indictment and
increases his sentence above the statutory maximum.
Almendarez-Torres v. United States, 523 U.S. 224 (1998), held,
however, that the enhanced penalties in 8 U.S.C. § 1326(b) are
sentencing factors, not elements of separate offenses. 523 U.S. at
235. Moreover, this does not violate due process. Id. at 247.
Solis acknowledges his claim is foreclosed by Almendarez-
Torres. He presents it only to preserve possible Supreme Court
review in the light of Apprendi, 530 U.S. at 490 (holding that any
fact, with the exception of a prior conviction, that increases a
sentence beyond the statutory maximum “must be submitted to a jury,
and proved beyond a reasonable doubt”).
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III.
For the foregoing reasons, the judgment is
AFFIRMED.
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