United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS May 25, 2004
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 03-40982
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BERNABE COLINDRES,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. L-03-CR-137-ALL
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Before HIGGINBOTHAM, DAVIS and PRADO, Circuit Judges.
PER CURIAM:*
Bernabe Colindres appeals his guilty-plea conviction and
sentence for re-entry of a deported alien in violation of 8
U.S.C. § 1326(a) and (b)(1).
Colindres argues that the district court erroneously
calculated his criminal history points when it assigned two
criminal history points to his 2001 Youngstown, Ohio, Municipal
Court conviction for Improper Handling of a Firearm in a Motor
Vehicle (Misdemeanor). The plain error standard of review
*
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that this opinion should not be published and is not precedent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. 03-40982
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governs this issue since it was not raised below. United States
v. Wilder, 15 F.3d 1292, 1301 (5th Cir. 1994). The Government
concedes that there was an error, that the error was clear or
obvious, and that the error affected Colindres’ substantial
rights. See United States v. Olano, 507 U.S. 725, 732 (1993)
(setting forth elements of plain error review).
The text of the Presentence Report (“PSR”) states that for
the offense at issue 173 days of Colindres’ total sentence of 180
days were suspended. In accordance with the relevant Guidelines,
this “sentence of imprisonment” was therefore only seven days and
thus this conviction should not have received two criminal
history points. See U.S.S.G. § 4A1.1(b) and comment.; U.S.S.G.
§ 4A1.2(b)(1) and (2); United States v. Carbajal, 290 F.3d 277,
283 (5th Cir.), cert. denied, 537 U.S. 934 (2002) (if the
guideline language is unambiguous, this court’s inquiry begins
and ends with an analysis of the plain meaning of that language).
This offense also did not qualify for criminal history points
pursuant to U.S.S.G. § 4A1.1(c), since Colindres had other
convictions that scored four points pursuant to U.S.S.G.
§ 4A1.1(c). Thus, the Guidelines indicate that there was an
error in the PSR. Because the parties failed to mention this
error to the district court, the error also affected Colindres’
substantial rights, since Colindres’ sentence is greater than the
upper end of the correct Guidelines range. Additionally, the
fairness of the judicial proceeding was seriously affected
No. 03-40982
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because the increase in Colindres’ sentence was erroneous and
substantial. See United States v. Aderholt, 87 F.3d 740, 744
(5th Cir. 1996). We therefore VACATE the sentnece insofar as its
calculation includes two criminal history points for Colindres’
2001 Youngstown, Ohio, Municipal Court conviction for Improper
Handling of a Firearm in a Motor Vehicle (Misdemeanor).
Colindres also argues for the first time on appeal that the
district court’s application of the eight-level offense level
increase of U.S.S.G. § 2L1.2(b)(1)(C) was plain error. He argues
that the conviction that formed the basis for the adjustment, a
California conviction for “Petty Theft With a Prior (Felony)” is
not an “aggravated felony” under U.S.S.G. § 2L1.2(b)(1)(C). The
Government does not concede that the district court erred with
respect to this issue.
Unlike with the prior issue, the text of the PSR indicates
that the district court did not commit clear or obvious error
with respect to this issue. See Olano, 507 U.S. at 732-34.
Rather, Colindres had a theft conviction prior to being deported
and he was sentenced to one-year imprisonment for the theft
conviction. Based on the plain language of U.S.S.G.
§ 2L1.2(b)(1)(C), the theft conviction qualified as an aggravated
felony. See U.S.S.G. § 2L1.2(b)(1)(C) (the base offense level is
increased by eight levels if a defendant who unlawfully enters
the United States was previously deported after a conviction for
an aggravated felony); U.S.S.G. § 2L1.2(b)(1)(C), comment. n.2
No. 03-40982
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(“aggravated felony” has the meaning given that term in 8 U.S.C.
§ 1101(a)(43)); 8 U.S.C. § 1101(a)(43) (aggravated felony means,
inter alia, a theft offense for which the term of imprisonment is
at least one year); 8 U.S.C. § 1101(48)(B) (term of imprisonment
is deemed to include the period of incarceration or confinement
regardless of any suspension of that imprisonment in whole or in
part); United States v. Yanez-Huerta, 207 F.3d 746, 749 (5th Cir.
2000) (applying 8 U.S.C. § 1101(48)(B) to aggravated felony
determination of U.S.S.G. § 2L1.2). Thus, the language of the
PSR and U.S.S.G. § 2L1.2(b)(1)(C) indicates that the adjustment
is appropriate and the district court therefore did not plainly
err when it relied on information in the PSR that Colindres did
not challenge. See United States v. Vital, 68 F.3d 114, 120 (5th
Cir. 1995); United States v. Davis, 76 F.3d 82, 84 (5th Cir.
1996); United States v. Ramirez, _ F.3d _ (5th Cir. April 5,
2004) (No. 03-60576) 2004 WL 828096, *1-2. The district court’s
judgment with respect to this issue is AFFIRMED.
Colindres also argues that the “felony” and “aggravated
felony” provisions set forth in 8 U.S.C. § 1326(b)(1) and (b)(2)
are unconstitutional in light of Apprendi v. New Jersey, 530 U.S.
466 (2000). Colindres’ challenge is foreclosed by Almendarez-
Torres v. United States, 523 U.S. 224, 227-47 (1998), in which
the Supreme Court held that Congress intended to set forth
sentencing factors in 8 U.S.C. § 1326(b), not a separate criminal
offense, and that the sentencing provisions in 8 U.S.C. § 1326(b)
No. 03-40982
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were not unconstitutional. The Supreme Court in Apprendi
expressly declined to 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 therefore follow the precedent
set in Almendarez-Torres “unless and until the Supreme Court
itself determines to overrule it.” Dabeit, 231 F.3d at 984.
AFFIRMED IN PART; VACATED IN PART AND REMANDED FOR
RESENTENCING.