United States v. Acuna-Chavez

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT October 9, 2003

Charles R. Fulbruge III
Clerk
No. 03-40003 c/w
03-40112
Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JAVIER ACUNA-CHAVEZ,

Defendant-Appellant.

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Appeals from the United States District Court
for the Southern District of Texas
(B-02-CR-519-1)
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Before JOLLY, SMITH, and WIENER, Circuit Judges.

PER CURIAM:*

Defendant-Appellant Javier Acuna-Chavez (“Acuna”) appeals his

guilty-plea conviction and sentence for violating 8 U.S.C.

§ 1326(a) and (b) by illegally reentering the United States,

without permission, following his conviction for a felony and

subsequent deportation. He also purports to appeal the revocation

of supervised release that resulted from his illegal reentry, but

he has abandoned appeal of the revocation itself by failing to

*
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that this opinion should not be published and is not precedent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.
brief any issue relevant to it. See United States v. Still, 102

F.3d 118, 122 n.7 (5th Cir. 1996).

Acuna contends, for the first time on appeal, that his

sentencing guidelines offense level was improperly increased by 16

levels. He argues that his prior offense of aggravated assault did

not meet the definition of “aggravated felony” found in 8 U.S.C.

§ 1101(a)(43)(F) because he was not sentenced to at least a year in

prison. Acuna concedes that the prior conviction of aggravated

assault was for a “felony” as defined by the relevant guidelines

commentary, because he could have been sentenced to more than a

year in prison. See U.S.S.G. § 2L1.2, comment. (n.1(B)(iv)). He

also concedes that it was “crime of violence” as defined by the

guidelines. See U.S.S.G. § 2L1.2, comment. (n. 1(B)(ii)(II)).

Because Acuna’s prior felony conviction satisfied the plain

language of the guideline that prescribes a 16-level increase, he

does not show plain error. See U.S.S.G. § 2L1.2(b)(1)(A)(ii);

United States v. Hull, 160 F.3d 265, 271 (5th Cir. 1998) (plain

error).

Acuna also contends that he should not have been assessed a

criminal history point for a prior conviction for petty larceny,

because that crime is similar to the crime of writing an

insufficient-funds check which is exempt from inclusion in the

criminal history calculation. See U.S.S.G. § 4A1.2(c)(1). Acuna

fails to provide any binding authority holding that the two

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offenses are similar, thus failing to show that the district court

made any “clear” or “obvious” error. See Hull, 160 F.3d at 271.

For the first time on appeal, Acuna argues that 8 U.S.C.

§ 1326(b) is unconstitutional because it treats a prior conviction

as a sentencing factor and not as an element of the offense. As

Acuna acknowledges, his argument is foreclosed by Almendarez-Torres

v. United States, 523 U.S. 224, 235 (1998), and he raises the issue

only to preserve it for possible review by the United States

Supreme Court. As we are bound to follow established law, we

reject this contention.

Finally, Acuna asks us to remand his case for the correction

of a clerical error pursuant to FED. R. CRIM. P. 36. He fails,

however, to show either a clerical error or a plain error that

affected his substantial rights. See United States v. Steen, 55

F.3d 1022, 1026 n.3 (5th Cir. 1995); Hull, 160 F.3d at 271-72.

Acuna’s conviction and sentence are

AFFIRMED.

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