United States v. Alvarez-Gutierrez

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS December 22, 2003
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk

No. 03-50497
Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JAVIER ALVAREZ-GUTIERREZ,

Defendant-Appellant.

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Appeal from the United States District Court
for the Western District of Texas
USDC No. DR-02-CR-678-1-WWJ
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Before BARKSDALE, EMILIO M. GARZA, and DENNIS, Circuit Judges.

PER CURIAM:*

Javier Alvarez-Gutierrez 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 aggravated assault conviction.

He argues that the Sentencing Commission intended that the 16-level

increase should be applied only to those crimes of violence that

*
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that this opinion should not be published and is not precedent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. 03-50497
-2-

are also aggravated felonies under 8 U.S.C. § 1101(a)(43). Under

the plain 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 an aggravated

assault. See U.S.S.G. § 2L1.2(b)(1)(A) and comment. (n.1(B)(ii)

(II)). Neither U.S.S.G. § 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 Alvarez’s prior aggravated assault

conviction.

Alvarez 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.