United States v. Rivera
265 F.3d 310
5th Cir.
2001
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Docket
PER CURIAM:

Tеofilo Santos Rivera appeals his sentenсe following a guilty plea to illegal entry after deportation pursuant to 8 U.S.C. § 1326(b)(2).

We review the district cоurt’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).

*312 Rivеra first contends that his sentence should be vacаted' 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 that his argument is foreclosed by the Supreme Court’s decision in Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (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, 120 S.Ct. 2348, 147 L.Ed.2d 435 (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, - U.S. -, 121 S.Ct. 1214, 149 L.Ed.2d 126 (2001). Rivera’s argument is foreclosed.

Rivera also сhallenges the characterization of his prior Texas conviction for cocaine pоssession as an “aggravated felony” offense аnd the concomitant sixteen-level increase in his base offense ‍‌‌​‌‌‌​​​​​​​‌​‌‌​‌​​‌​‌‌​‌​‌‌​​​‌‌‌‌‌​​​‌​‌​‌​‌‍level under U.S.S.G. § 2L1.2(b)(l)(A), contending that his sentеnce 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, 529 U.S. 1135, 120 S.Ct. 2017, 146 L.Ed.2d 965 (2000).

In United States v. Hinojosa-Lopez, 130 F.3d 691, 692-93, 694 (5th Cir.1997), we held that a state conviсtion is an “aggravated felony” pursuant to § 2L1.2(b)(l)(A) if “(1) the offense was punishable under the Controlled Substances Aсt and (2) it was a felony” under applicable statе law. Id. at 694. Rivera has not explicitly disputed that, as a matter of statutory construction, his challenge tо the § 2L1.2(b)(l)(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 сircuit authority that conflicts” with the panel decisiоn in question, this court is bound by the panel ‍‌‌​‌‌‌​​​​​​​‌​‌‌​‌​​‌​‌‌​‌​‌‌​​​‌‌‌‌‌​​​‌​‌​‌​‌‍decision). He contends, however, that under the “constitutional rule-of-lenity,” his objection to the increase presents an issue of first impression. This contention is erroneоus.

The rule-of-lenity fosters the constitutional due-prоcess principle “that no individual be forced tо speculate, at peril of indictment, whether his сonduct is prohibited.” Dunn v. United States, 442 U.S. 100, 112, 99 S.Ct. 2190, 60 L.Ed.2d 743 (1979). “The rule of lenity ... applies оnly 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, 115 S.Ct. 382, 130 L.Ed.2d 225 (1994) (emphasis added). It applies “only if after a review of all applicable ‍‌‌​‌‌‌​​​​​​​‌​‌‌​‌​​‌​‌‌​‌​‌‌​​​‌‌‌‌‌​​​‌​‌​‌​‌‍sources of legislаtive intent the statute remains truly am biguous.” 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, 101 S.Ct. 1137, 67 L.Ed.2d 275 (1981) (“The rule comes into оperation at the end of the process of construing what Congress has expressed, not at the bеginning as an overriding consideration of being lenient to wrongdoers.” (internal quotation marks and citation оmitted)). The rule-of-lenity is a rule of statutory construction, see Bifulco v. United States, 447 U.S. 381, 387, 100 S.Ct. 2247, 65 L.Ed.2d 205 (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 *313 felony” in our decision in Hinojosa-Lopez. See Hinojosa-Lopez, 130 F.3d at 693-94.

The judgment of the district court is AFFIRMED.