United States v. Alvarado-Delgado

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that this opinion should not be published and is not precedent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),
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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.