IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-20953
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TEOFILO SANTOS RIVERA,
Defendant-
Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-00-CR-336-ALL
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September 7, 2001
Before JOLLY, BENAVIDES and STEWART, Circuit Judges:
PER CURIAM:
Teofilo Santos Rivera appeals his sentence following a guilty plea to illegal entry after
deportation pursuant to 8 U.S.C. § 1326(b)(2).
We review the district court's application of the Sentencing Guidelines de novo and its factual
findings for clear error. See United States v. Stevenson, 126 F.3d 662, 664 (5th Cir. 1997).
Rivera first contends that his sentence should be vacated because his state felony conviction
for possession of a controlled substance, which resulted in an increased sentence under 8 U.S.C. §
1326(b)(2), was an element of the offense that should have been charged in the indictment.
Rivera acknowledges t hat his argument is foreclosed by the Supreme Court’s decision in
Almendarez-Torres v. United States, 523 U.S. 224 (1998), but he seeks to preserve the issue for
Supreme Court review in light of the decision in Apprendi v. New Jersey, 530 U.S. 466 (2000).
Apprendi did not overrule Almendarez-Torres. See Apprendi, 120 S. Ct. at 2362; United
States v. Dabeit, 231 F.3d 979, 984 (5th Cir. 2000), cert. denied, 121 S. Ct. 1214 (2001). Rivera’s
argument is foreclosed.
Rivera also challenges the characterization of his prior Texas conviction for cocaine
possession as an "aggravated felony" offense and the concomitant sixteen-level increase in his base
offense level under U.S.S.G. § 2L1.2(b)(1)(A), contending that his sentence should be reduced by
the rule-of-lenity. Rivera’s constitutional claim that the rule-of-lenity is applicable is reviewed de
novo. United States v. Romero-Cruz, 201 F.3d 374, 377 (5th Cir.), cert. denied, 120 S. Ct. 2017
(2000).
In United States v. Hinojosa-Lopez, 130 F.3d 691, 692-93, 694 (5th Cir. 1997), we held that
a state conviction is an “aggravated felony” pursuant to § 2L1.2(b)(1)(A) if “(1) the offense was
punishable under the Controlled Substances Act and (2) it was a felony” under applicable state law.
Id. at 694. Rivera has not explicitly disputed that, as a matter of statutory construction, his challenge
to the § 2L1.2(b)(1)(A) increase is foreclosed by Hinojosa-Lopez. See United States v. Garcia
Abrego, 141 F.3d 142, 151 n.1 (5th Cir. 1998) (“in the absence of any intervening Supreme Court
or en banc circuit authority that conflicts” with the panel decision in question, this court is bound by
the panel decision). He contends, however, that under t he “constitutional rule-of-lenity,” his
objection to the increase presents an issue of first impression. This contention is erroneous.
The rule-of-lenity fosters the constitutional due-process principle “that no individual be forced
to speculate, at peril of indictment, whether his conduct is prohibited." Dunn v. United States, 442
U.S. 100, 112 (1979). “The rule of lenity ... applies only when, after consulting traditional canons
of statutory construction, [a court is] left with an ambiguous statute.” United States v. Shabani, 513
U.S. 10, 17 (1994) (emphasis added). It applies “only if after a review of all applicable sources of
legislative intent the statute remains truly ambiguous.” United States v. Cooper, 966 F.2d 936, 944
(5th Cir. 1992) (internal quotation marks and citation omitted); see also Albernaz v. United States,
450 U.S. 333, 342 (1981) (“The rule comes into operation at the end of the process of construing
what Congress has expressed, not at the beginning as an overriding consideration of being lenient to
wrongdoers.” (internal quotation marks and citation omitted)). The rule-of-lenity is a rule of
statutory construction, see Bifulco v. United States, 447 U.S. 381, 387 (1980); United States v.
Brito, 136 F.3d 397, 408 (5th Cir. 1998), rather than a separate constitutional framework for raising
claims. We have already expressed our interpretation of the term “aggravated felony” in our decision
in Hinojosa-Lopez. See Hinojosa-Lopez, 130 F.3d at 693-94.
The judgment of the district court is AFFIRMED.