IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 13, 2009
No. 08-40920 Charles R. Fulbruge III
Summary Calendar Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
ABRAHAM GARCIA-AGUILERA
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:08-CR-194-ALL
Before GARZA, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
Abraham Garcia-Aguilera (“Garcia”) appeals his conviction and sentence
for illegal reentry after deportation in violation of 8 U.S.C. § 1326. Although his
indictment cited § 1326(b)(1), Garcia argues that the Government effectively
amended the indictment so that he would receive an increased sentence under
the broader provisions of § 1326(b).
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 08-40920
Because Garcia did not object on this basis below, we review for plain
error. See United States v. Peltier, 505 F.3d 389, 391-92 (5th Cir. 2007), cert.
denied, 128 S. Ct. 2959 (2008). To show plain error, the appellant must
demonstrate a forfeited error that is clear or obvious and that affects his
substantial rights. Puckett v. United States, 129 S. Ct. 1423, 1429 (2009). If the
appellant makes such a showing, this Court has the discretion to correct the
error, but only if it seriously affects the fairness, integrity, or public reputation
of judicial proceedings. Id.
Garcia’s argument is based, in part, on the Government’s statement at
sentencing that, because he had a prior drug-trafficking conviction, his
indictment should have cited to § 1326(b). However, there is no indication that
his indictment actually was amended. His indictment specified § 1326(b)(1), he
was advised at re-arraignment of the statutory maximum under that subsection,
his sentence was calculated using that same statutory maximum, and the
district court’s judgment cited § 1326(b)(1).
Garcia also argues that, because his indictment specified § 1326(b)(1),
which applies to, inter alia, aliens whose removal was subsequent to a conviction
for a “felony (other than an aggravated felony),” the district court could not
impose a 16-level enhancement for his prior drug trafficking offense without
effectively amending the indictment. Garcia has not shown plain error. A
sentencing judge is “entitled to find by a preponderance of the evidence all the
facts relevant to the determination of a Guideline sentencing range.” United
States v. Mares, 402 F.3d 511, 519 (5th Cir. 2005). The Guidelines themselves
do not differentiate between the different subsections of § 1326. See U.S.S.G.
App. A (Statutory Index). In addition, when determining the Guidelines
sentence, the “greatest” specific offense characteristic should be applied. See §
2L1.2(b)(1). In addition, § 1326(b) constitutes a sentencing enhancement rather
than an element of the offense that must be set forth in the indictment and
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No. 08-40920
proven beyond a reasonable doubt. See Almendarez-Torres v. United States, 523
U.S. 224, 235 (1998).
AFFIRMED.
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