IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-10224
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JUAN BENITEZ-SANCHEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 6:01-CR-51-1-C
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October 30, 2002
Before DeMOSS, BENAVIDES, and STEWART, Circuit Judges.
PER CURIAM:*
Juan Benitez-Sanchez appeals the sentence imposed following
his guilty plea conviction of being found in the United States
after deportation in violation of 8 U.S.C. § 1326. He complains
that his sentence was improperly increased based on his prior
deportation following an aggravated felony conviction.
Benitez-Sanchez first argues that the aggravated felony
conviction that resulted in his increased sentence is an element
of the offense under 8 U.S.C. § 1326(b)(2) that should have been
alleged in his indictment and included in the factual basis of
*
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that this opinion should not be published and is not precedent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. 02-10224
-2-
his guilty plea. Benitez-Sanchez maintains that he pleaded
guilty to an indictment which charged only simple reentry under
8 U.S.C. § 1326(a). He argues that his sentence exceeds the
two-year maximum term of imprisonment which may be imposed for
that offense.
Benitez-Sanchez’s argument presupposes that 8 U.S.C.
§ 1326(a) and 8 U.S.C. § 1326(b)(2) define separate offenses.
However, in Almendarez-Torres v. United States, 523 U.S. 224, 235
(1998), the Supreme Court held that the enhanced penalties in
8 U.S.C. § 1326(b) are sentencing provisions, not elements of
separate offenses. As an aggravated felony is not an element of
the offense under 8 U.S.C. § 1326, it need not have been alleged
in the indictment and need not have been elicited as an element
of the offense when establishing the factual basis. Benitez-
Sanchez’s argument is without merit.
Benitez-Sanchez also contends that nothing in the record
supports a finding that he was convicted of an aggravated felony.
Benitez-Sanchez’s argument has no basis in fact. The presentence
report (PSR) clearly states that in 1998, Benitez-Sanchez was
convicted in state court of three counts of delivering a
controlled substance. Those offenses qualify as aggravated
felonies for purposes of 8 U.S.C. § 1326(b)(2) and the United
States Sentencing Guidelines. See U.S.S.G. § 2L1.2(b)(1)(A)(Nov.
2001), § 2L1.2, comment. (n.1(B)(iii)(Nov. 2001)). Benitez-
Sanchez has not challenged the accuracy of the facts contained in
the PSR. See United States v. Vital, 68 F.3d 114, 120 (5th Cir.
1995). Accordingly, the district court was entitled to rely on
No. 02-10224
-3-
that information at sentencing. Id. The judgment of the
district court is AFFIRMED.
In lieu of filing an appellee’s brief, the Government has
filed a motion asking this court to dismiss this appeal or, in
the alternative, to summarily affirm the district court’s
judgment. The Government’s motion to dismiss is DENIED. The
motion for a summary affirmance is GRANTED. The Government need
not file an appellee’s brief.
AFFIRMED; MOTION TO DISMISS DENIED; MOTION FOR SUMMARY
AFFIRMANCE GRANTED.