United States Court of Appeals
Fifth Circuit
FILED
IN THE UNITED STATES COURT OF APPEALS August 17, 2004
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 03-40820
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
EPIMENIO RAMIREZ-GONZALEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. L-03-CR-344-ALL
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Before HIGGINBOTHAM, DAVIS, and PICKERING, Circuit Judges.
PER CURIAM:*
Epimenio Ramirez-Gonzalez appeals from his guilty-plea
conviction and sentence for being illegally present in the United
States after being previously deported 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 pursuant to U.S.S.G.
§ 2L1.2(b)(1)(A) based on his prior aggravated assault
conviction. He contends that the Sentencing Commission intended
that the 16-level increase should be applied only to those crimes
*
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this opinion should not be published and is not precedent except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. 03-40820
-2-
of violence that 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 commentary, the district court did not
err in imposing the 16-level increase based upon Ramirez-
Gonzalez’s prior aggravated assault conviction.
Ramirez-Gonzalez also argues that the district court erred
by assessing two criminal history points for his prior aggravated
assault conviction. Because this argument is raised for the
first time on appeal, it is reviewed only for plain error. See
United States v. Olano, 507 U.S. 725, 732 (1993); FED. R. CRIM. P.
52(b). When reviewing for plain error in the sentencing context,
“this court has concluded that if the trial judge, on remand,
could reinstate the same sentence, it will uphold the sentence
imposed despite the trial court’s error.” United States v.
Leonard, 157 F.3d 343, 346 (5th Cir. 1998)(citations omitted).
Ramirez-Gonzalez admits that, even if his criminal history score
were corrected, the district court could impose the same 70-
month sentence on remand. Accordingly, Ramirez-Gonzalez has not
shown plain error. See id.
Ramirez-Gonzalez acknowledges that Leonard continues to be
binding precedent in the sentencing guidelines context, but he
contends that this court should apply the presumed-prejudice
approach adopted in United States v. Reyna, 358 F.3d 344 (5th
Cir.) (en banc), cert. denied, 124 S. Ct. 2390 (2004). One panel
may not overrule the decisions of another without en banc
No. 03-40820
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consideration or an intervening Supreme Court opinion. See Hogue
v. Johnson, 131 F.3d 466, 491 (5th Cir. 1997). The en banc
decision in Reyna did not extend the presumption of prejudice to
errors that result in the application of an incorrect guideline
range. See Reyna, 358 F.3d at 353.
For the first time on appeal, Ramirez-Gonzalez argues that
8 U.S.C. § 1326(b) is unconstitutional on its face and as applied
in his case because it does not require the fact of a prior
felony or aggravated felony conviction to be charged in the
indictment and proved beyond a reasonable doubt. He thus
contends that his sentence is invalid and argues that it should
not exceed the two-year maximum term of imprisonment prescribed
in 8 U.S.C. § 1326(a).
Ramirez-Gonzalez acknowledges that his argument is
foreclosed by Almendarez-Torres v. United States, 523 U.S. 224
(1998), but asserts that the decision has been cast into doubt by
Apprendi v. New Jersey, 530 U.S. 466, 490 (2000). He seeks to
preserve his argument for further review. Apprendi 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 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.