UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 02-41042
Summary Calendar
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LEANDRO GUTIERREZ-ESTRADA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
(B-02-CR-45-1)
_________________________________________________________________
March 12, 2003
Before BARKSDALE, DEMOSS, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Leandro Gutierrez-Estrada, convicted for violating 8 U.S.C. §
1326(a), appeals his sentence. Prior to deportation, Gutierrez was
convicted for possession of marijuana for resale, for which he was
sentenced to two years of custody, suspended for two years of
probation.
Gutierrez contends the district court plainly erred by
increasing his offense level by 12, pursuant to U.S.S.G. §
2L1.2(b)(1)(B). See U.S.S.G., cmt. n.1 (A)(iv) (for purposes 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this opinion should not be published and is not precedent except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.
determining whether, inter alia, sentence imposed for drug
trafficking was 13 months or less, “sentence imposed” refers only
to portion of sentence not probated or suspended). Given the lack
of controlling authority in this circuit on this issue, and as
discussed below, any error on the part of the district court was
not “clear or obvious” and, therefore, does not constitute plain
error. See e.g., United States v. Calverley, 37 F.3d 160, 162-64
(5th Cir. 1994) (en banc).
Subsection (b)(1)(B) provides for a 12-level enhancement when
the defendant was previously convicted of a “felony drug
trafficking offense for which the sentence imposed was 13 months or
less”. (Emphasis added.) Arguably, pursuant to § 2L1.2’s above-
referenced commentary, Gutierrez’ “sentence imposed” was zero
months, a period “less” than 13 months. In other words, and
pursuant to the commentary, even though the entire sentence was
probated, the “sentence imposed” is arguably zero months, because
that was the portion of the sentence not probated. Again, because
there is no controlling authority in this circuit, any error did
not meet the required level of being “clear” or “obvious”.
Gutierrez contends that the sentence-enhancing provisions of
8 U.S.C. § 1326(b)(1) and (b)(2) are unconstitutional in the light
of Apprendi v. New Jersey, 530 U.S. 466 (2000). Gutierrez
acknowledges this issue is foreclosed by Almendarez-Torres v.
2
United States, 523 U.S. 224 (1998), but he seeks to preserve it for
Supreme Court review.
AFFIRMED
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