United States v. Hernandez-Mesa

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT August 17, 2005

Charles R. Fulbruge III
Clerk
No. 04-40737
Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

HECTOR HERNANDEZ-MESA,

Defendant-Appellant.

--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:03-CR-1902-ALL
--------------------

Before BENAVIDES, CLEMENT, and PRADO, Circuit Judges.

PER CURIAM:*

Hector Hernandez-Mesa appeals his sentence following a

guilty-plea conviction for being an alien found in the United

States after deportation in violation of 8 U.S.C. § 1326.

For the first time, Hernandez-Mesa argues that the district

court committed reversible plain error by adding 16 levels to his

base offense level because he was convicted, prior to

deportation, of a felony alien smuggling offense pursuant to 8

U.S.C. § 1324. Because he was convicted of transporting illegal

*
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this opinion should not be published and is not precedent except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. 04-40737
-2-

aliens, an offense different from alien smuggling, Hernandez-Mesa

concludes that the addition of 16 levels was unwarranted. He

concedes that this argument is foreclosed by United States v.

Solis-Campozano, 312 F.3d 164, 167-68 (5th Cir. 2002). He

nevertheless seeks to preserve the issue for possible Supreme

Court review.

In Solis-Campozano, we concluded that all of the offenses

listed in § 1324(a)(1)(A), which include transporting and

harboring illegal aliens, are “alien smuggling” offenses for

purposes of § 2L1.2(b)(1)(A)(vii). 312 F.3d at 167-68.

Hernandez-Mesa’s argument is thus foreclosed. See id.

For the first time, Hernandez-Mesa argues that the felony

and aggravated felony provisions of 8 U.S.C. § 1326(b) are

unconstitutional, both facially and as applied, under Apprendi v.

New Jersey, 530 U.S. 466 (2000). He correctly concedes that this

argument is foreclosed by the Supreme Court’s decision in

Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998), but

nevertheless he seeks to preserve the issue for possible Supreme

Court review. See United States v. Izaguirre-Flores, 405 F.3d

270, 277-78 (5th Cir. 2005) (noting that the Supreme Court in

Apprendi did not overrule Almendarez-Torres), petition for cert.

filed (July 22, 2005) (No. 05-5469).

Hernandez-Mesa argues for the first time in a supplemental

letter brief that his sentence is illegal under United States v.

Booker, 125 S. Ct. 738 (2005), because the district court
 No. 04-40737
-3-

sentenced him under the mistaken belief that the guidelines were

mandatory. Review is for plain error. United States v.

Valenzuela-Quevedo, 407 F.3d 728, 732-33 (5th Cir. 2005),

petition for cert. filed (July 25, 2005) (No. 05-5556). Nothing

in the record indicates that the district court would have

imposed a different sentence had the guidelines been advisory.

Id.

Accordingly, the judgment of the district court is AFFIRMED.