United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS October 9, 2003
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 03-40182
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
CIRILO ALVARADO-DELGADO,
Defendant - Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. B-02-CR-652-1
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Before HIGGINBOTHAM, DAVIS and PRADO, Circuit Judges.
PER CURIAM:*
Cirilo Alvarado-Delgado (“Alvarado”) appeals from his
conviction and sentence for unlawful re-entry following
deportation subsequent to a conviction for an aggravated felony
in violation of 8 U.S.C. § 1326(a), (b)(2).
Alvarado argues that his conviction amounts to plain error
because he did not have an aggravated-felony conviction necessary
to establish a violation of 8 U.S.C. § 1326(b)(2). Alvarado’s
*
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that this opinion should not be published and is not precedent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. 03-40182
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pre-sentence report did not include any conviction that qualified
as an aggravated felony for purposes of 8 U.S.C. § 1326(b)(2).
He maintains that he was subject only to the provisions of 8
U.S.C. § 1326(b)(1). As Alvarado concedes, his sentence does not
exceed the maximum under that clause, so his conviction and
sentence for violating 8 U.S.C. § 1326(b)(2) did not amount to
plain error because it did not affect his substantial rights.
See United States v. Ramirez-Velasquez, 322 F.3d 868, 879 (5th
Cir. 2003), petition for cert. filed, (U.S. May 20, 2003) (No.
02-10862). The aggravated-felony provision of 8 U.S.C.
§ 1326(b)(2) is merely a penalty provision and does not define a
separate crime. Almendarez-Torres v. United States, 523 U.S.
224, 226 (1998).
Alvarado contends that the district court erred in applying
a 16-level enhancement to his sentence based on his prior battery
conviction. As Alvarado concedes, his battery conviction
warrants a 16-level enhancement under the literal terms of
U.S.S.G. § 2L1.2(b)(1)(A)(ii). Alvarado has not established that
“clear contrary legislative intention” required the district
court to read the amended guideline in a manner that contradicted
its “plain language.” See United States v. Scrimgeour, 636 F.2d
1019, 1022-23 (5th Cir. 1981).
Furthermore, Alvarado maintains that the “felony” and
“aggravated felony” provisions of 8 U.S.C. § 1326(b) are
unconstitutional. Apprendi v. New Jersey, 530 U.S. 466 (2000),
No. 03-40182
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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). This court must follow the precedent set in 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).
AFFIRMED.