United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT October 21, 2004
Charles R. Fulbruge III
Clerk
No. 03-41141
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE JOAQUIN PEQUE-PEREZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. L-03-CR-386-ALL
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Before JOLLY, JONES, and WIENER, Circuit Judges.
PER CURIAM:*
Jose Joaquin Peque-Perez appeals his guilty plea conviction
and 78-month sentence for illegal reentry into the United States
following an aggravated felony conviction in violation of
8 U.S.C. § 1326. For the first time on appeal, Peque-Perez
argues that the district court erred in assigning a criminal
history point for his prior conviction for possession of an open
bottle in a vehicle. Peque-Perez contends that, had his criminal
*
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this opinion should not be published and is not precedent except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. 03-41141
-2-
history score been correctly determined, he would have been in
Criminal History Category V, rather than in Category VI.
Because the issue was not raised in the district court,
this court’s review is for plain error only. See United States
v. Leonard, 157 F.3d 343, 345 (5th Cir. 1998); 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.” Leonard, 157 F.3d at
346. Peque-Perez concedes that, even if his criminal history
score were corrected, the district court could impose the same
78-month sentence on remand. Accordingly, Peque-Perez has not
shown plain error. See id.
Peque-Perez 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
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.
No. 03-41141
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For the first time on appeal, Peque-Perez also argues that
the sentencing provisions of 8 U.S.C. § 1326(b)(1) & (2) are
unconstitutional in light of Apprendi v. New Jersey, 530 U.S. 466
(2000). Peque-Perez acknowledges that his argument is foreclosed
by Almendarez-Torres v. United States, 523 U.S. 224 (1998), but
he seeks to preserve the issue for Supreme Court 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).
AFFIRMED.