United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT October 12, 2004
Charles R. Fulbruge III
Clerk
No. 04-50213
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SERGIO VIVAR-ACOSTA, also known as Sergio Vivar,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Western District of Texas
USDC No. EP-03-CR-1893-ALL-KC
--------------------
Before DAVIS, SMITH, and DENNIS, Circuit Judges.
PER CURIAM:*
Sergio Vivar-Acosta appeals the sentenced imposed following
his guilty-plea conviction for illegal reentry following
deportation subsequent to an aggravated-felony conviction, a
violation of 8 U.S.C. § 1326.
Vivar argues that the imposition of his 60-month sentence
constitutes a due process violation in light of Apprendi v. New
Jersey, 566 U.S. 430 (2000), because his prior aggravated felony
conviction was not alleged in the indictment. Vivar’s challenge
*
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this opinion should not be published and is not precedent except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. 04-50213
-2-
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) 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. Thus, to the extent Vivar
challenges that district court’s rejection of his Apprendi
argument, the judgment of the district court is AFFIRMED.
Vivar argues that the district court erroneously calculated
his criminal history points when it assigned three criminal
history points to his 1999 conviction for burglary. The plain
error standard of review 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
Vivar’s 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 Vivar was sentenced to a total of seven
months of incarceration. In accordance with the relevant
No. 04-50213
-3-
sentencing guidelines, this conviction should have received only
two criminal history points. See U.S.S.G. § 4A1.1(b) & comment.;
U.S.S.G. § 4A1.2(b)(1) & (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).
Thus, the guidelines indicate that there was an error in the PSR.
The error also affected Vivar’s substantial rights, since Vivar’s
sentence is greater than the upper end of the correct guidelines
imprisonment range. Additionally, the fairness of the judicial
proceeding was seriously affected because the increase in Vivar’s
sentence was erroneous and substantial. See United States v.
Aderholt, 87 F.3d 740, 744 (5th Cir. 1996). We therefore VACATE
the sentence insofar as its calculation includes three criminal
history points for Vivar’s 1999 burglary conviction and REMAND
for resentencing.
AFFIRMED IN PART; VACATED IN PART AND REMANDED FOR
RESENTENCING.