United States v. Sanchez

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT October 1, 2004

Charles R. Fulbruge III
Clerk
No. 03-41496
Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

NOE SANCHEZ, JR.,

Defendant-Appellant.

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Appeal from the United States District Court
for the Southern District of Texas
USDC No. B-03-CR-412-2
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Before WIENER, BENAVIDES, and STEWART, Circuit Judges.

PER CURIAM:*

Noe Sanchez, Jr. appeals the sentence imposed following his

jury conviction for conspiracy to transport aliens within the

United States and three counts of transporting aliens within the

United States in violation of 8 U.S.C. § 1324(a)(1)(A)(ii),

(v)(I), and (v)(II). Sanchez argues that his 72-month sentence

for the conspiracy offense exceeds the statutory maximum sentence

of five years in the absence of a jury finding that the offense

was committed for private financial gain. The plain language of

*
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this opinion should not be published and is not precedent except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. 03-41496
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8 U.S.C. § 1324(a)(1)(B)(i) provides that the penalty for

conspiracy to transport aliens within the United States is ten

years. The statute does not require a showing that the

conspiracy offense was committed for commercial advantage or

private financial gain. The statute further provides that the

penalty for the offense of transporting aliens under 8 U.S.C.

§ 1324(a)(1)(A)(ii), (iii), and (iv), in which the offense was

committed for the purpose of commercial advantage or private

financial gain, is ten years. Because the portion of the statute

applicable to the conspiracy offense does not require proof of

commercial advantage or private financial gain, Sanchez’s 72-

month sentence for the conspiracy offense does not exceed the

ten-year statutory maximum sentence for this offense, and

Apprendi v. New Jersey, 530 U.S. 466 (2000), is inapplicable.

Sanchez’s sentence on count one is affirmed.

Sanchez was also convicted for aiding and abetting the

transportation of illegal aliens within the United States in

violation of 8 U.S.C. § 1324(a)(1)(A)(ii) and (v)(II). The

statutory maximum sentence for these offenses is five years.

8 U.S.C. § 1324(a)(1)(B)(ii); see also United States v. Nolasco-

Rosas, 286 F.3d 762, 767 (5th Cir. 2002). Sanchez’s 72-month

sentence for counts two, three, and four, for transporting aliens

within the United States exceeds the five-year statutory maximum

sentence for these offenses. Therefore, it is an illegal

sentence, and its imposition constitutes plain error. United
 No. 03-41496
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States v. Sias, 227 F.3d 244, 246 (5th Cir. 2000). Sanchez’s

sentence on counts two, three, and four is vacated and the case

is remanded for resentencing on those counts.

AFFIRMED IN PART; VACATED AND REMANDED IN PART.