United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 4, 2003
Charles R. Fulbruge III
Clerk
No. 02-51368
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
OMAR ARGUIJO-LUCIO,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. EP-02-CR-1527-ALL-DB
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Before BARKSDALE, DeMOSS, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Omar Arguijo-Lucio appeals his sentence for illegal
reentry into the United States following removal in violation of 8
U.S.C. § 1326. He argues that the district court erred in imposing
a 16-level increase in his offense level under U.S.S.G.
§ 2L1.2(b)(1)(A) based on his prior robbery conviction. He argues
that the Sentencing Commission intended that the 16-level increase
should be applied only to those crimes of violence that are also
aggravated felonies under 8 U.S.C. § 1101(a)(43). Under the plain
*
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that this opinion should not be published and is not precedent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.
language of U.S.S.G. § 2L1.2(b)(1)(A) and its comments, a 16-level
increase applies if the defendant has a prior conviction for a
crime of violence, which expressly includes robbery. See
U.S.S.G. § 2L1.2(b)(1)(A) and comment. (n.1(B)(ii)). Neither
§ 2L1.2(b)(1)(A) nor the comment refers to 8 U.S.C. § 1101(a)(43)
or provides that a crime of violence must also be an aggravated
felony under 8 U.S.C. § 1101(a)(43). Accordingly, the district
court did not err in imposing the 16-level increase based on
Arguijo’s prior robbery conviction.
Arguijo argues that his sentence exceeds the statutory maximum
sentence for the offense of illegal reentry into the United States
as charged in the indictment in view of Apprendi v. New Jersey, 530
U.S. 466 (2000). He acknowledges that the argument is foreclosed
by Alemendarez-Torres v. United States, 523 U.S. 224 (1998), but
seeks to preserve it for possible Supreme Court review. Apprendi
did not overrule Almendarez-Torres. See Apprendi 530 U.S. at 489-
90. This court must therefore follow the precedent set in
Almendarez-Torres “unless and until the Supreme Court itself
determines to overrule it.” United States v. Dabeit, 231 F.3d 979,
984 (5th Cir. 2000).
AFFIRMED.
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