United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS June 4, 2003
FOR THE FIFTH CIRCUIT Charles R. Fulbruge III
Clerk
No. 02-40924
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MIGUEL ANGEL ALFARO-LOPEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. L-01-CR-1280-ALL
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Before BARKSDALE, DEMOSS, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Miguel Angel Alfaro-Lopez (“Alfaro”) appeals the sentence
imposed following his guilty plea conviction for illegal reentry
into the United States after deportation following the commission
of an aggravated felony. He argues that the district court erred
by applying the 16-level enhancement for a prior conviction for a
crime of violence pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(ii) on
the basis of his prior state felony convictions for battery on a
*
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that this opinion should not be published and is not precedent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. 02-40924
-2-
law enforcement officer. Alfaro maintains that these convictions
were not aggravated felonies because he received a sentence of
less than one year confinement for each offense. While Alfaro
concedes that the literal language of the guideline does not
require a prior conviction to be an aggravated felony to qualify
as a crime of violence, he contends that the clear intent of the
Sentencing Commission was for the crime of violence enhancement
not to apply to crimes that were not aggravated felonies.
Because Alfaro did not raise this issue below, we review for
plain error. See United States v. Hull, 160 F.3d 265, 271 (5th
Cir. 1998). As Alfaro is raising an issue of apparent first
impression and the district court’s ruling was consistent with
the plain language of the guideline, the district court’s
application of the crime of violence enhancement was not plain
error. See id. at 272 (extension of precedent cannot be the
basis of plain error).
Alfaro additionally argues, for the first time on appeal,
that the sentence enhancing provisions contained in 8 U.S.C.
§§ 1326(b)(1) and 1326(b)(2) are unconstitutional. Alfaro
concedes that this argument is foreclosed by Almendarez-Torres v.
United States, 523 U.S. 224, 235 (1998), but asserts that the
decision has been cast into doubt by Apprendi v. New Jersey, 530
U.S. 466, 490 (2000). He seeks to preserve his argument for
further review.
No. 02-40924
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Apprendi did not overrule Almendarez-Torres. See Apprendi,
530 U.S. at 489-90; United States v. Dabeit, 231 F.3d 979, 984
(5th Cir. 2000). As Alfaro acknowledges, this court must follow
Almendarez-Torres “unless and until the Supreme Court itself
determines to overrule it.” Dabeit, 231 F.3d at 984 (internal
quotation marks and citation omitted).
For the foregoing reasons, Alfaro’s sentence is AFFIRMED.