United States v. Martinez-Carrisales

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS December 24, 2003
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk

No. 03-40489
Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

SEBASTIAN MARTINEZ-CARRISALES,

Defendant-Appellant.

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Appeal from the United States District Court
for the Southern District of Texas
USDC No. L-02-CR-1445-ALL
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Before DUHE’, EMILIO M. GARZA, and BENAVIDES, Circuit Judges.

PER CURIAM:1

Sebastian Martinez-Carrisales appeals from his conviction of

being found in the United States after deportation following a

conviction of an aggravated felony. He contends that the district

court erred by adjusting his offense level by 16 levels for

commission of a crime of violence based on a 1999 Illinois

conviction of residential burglary. He argues that his burglary

conviction was not an aggravated felony for sentencing purposes

and, for the first time on appeal, that the Sentencing Commission

1
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that this opinion should not be published and is not precedent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.
did not intend for the crime-of-violence adjustment to apply to

offenses that are not also aggravated felonies. He also contends

for the first time on appeal that the “felony” and “aggravated

felony” provisions of 8 U.S.C. § 1326(b) are unconstitutional in

light of Apprendi v. New Jersey, 530 U.S. 466 (2000).

The district court did not err by adhering to a literal

interpretation of the language of the U.S.S.G. § 2L1.2(b)(1)(A),

which provides for a 16-level adjustment for commission of a crime

of violence. Interpretation of the Sentencing Guidelines is

subject to ordinary rules of statutory construction, and if the

guideline’s language is unambiguous, our inquiry begins and ends

with an analysis of the plain meaning of that language. United

States v. Carbajal, 290 F.3d 277, 283 (5th Cir.), cert. denied, 537

U.S. 934 (2002). The only exception to this rule is when a clear

contrary legislative intention is shown, an exception that applies

only in “rare and exceptional circumstances.” See Ardestani v.

INS, 502 U.S. 129, 135-36 (1991). Martinez has not established

that the commentary to and history of the amended U.S.S.G. § 2L1.2

establish that the Commission did not intend that some offenses

that do not qualify as “aggravated felonies” within the meaning of

the guideline nonetheless warrant the guideline’s top offense-level

increase.

Martinez’s Apprendi contention is foreclosed by the caselaw of

this court. See United States v. Dabeit, 231 F.3d 979, 984 (5th

2
Cir. 2000). Martinez concedes that his contention is foreclosed,

but he raises it to preserve it for further review.

AFFIRMED.