522 F.3d 477 (5th Cir. 2008), 06-11276, United States v. Garcia-Arellano

Docket Nº:06-11276
Citation:522 F.3d 477
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Abel GARCIA-ARELLANO, Defendant-Appellant.
Case Date:March 25, 2008
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 477

522 F.3d 477 (5th Cir. 2008)

UNITED STATES of America, Plaintiff-Appellee,

v.

Abel GARCIA-ARELLANO, Defendant-Appellant.

No. 06-11276

United States Court of Appeals, Fifth Circuit.

March 25, 2008

Page 478

Juan Carlos Rodriguez, Dallas, TX, for U.S.

Page 479

Kevin Joel Page, Dallas, TX, for Defendant-Appellant.

Appeal from the United States District Court for the Northern District of Texas.

Before WIENER, GARZA, and BENAVIDES, Circuit Judges.

EMILIO M. GARZA, Circuit Judge.

Abel Garcia-Arellano ("Garcia") appeals the sentence imposed for his unlawful reentry following removal from the United States. Garcia asserts that the district court plainly erred by enhancing his sentence based on the determination that his prior Texas conviction for unlawful delivery of cocaine qualifies as a drug-trafficking offense under the sentencing guidelines. Garcia also asserts that the felony and aggravated felony provisions of 8 U.S.C. § 1326(b) are unconstitutional. We affirm the sentence imposed by the district court.

I

Garcia pleaded guilty, without a written agreement, to being an alien found in the Untied States after having been removed. See 8 U.S.C. § 1326(a), (b)(2). Pursuant to UNITED STATES SENTENCING GUIDELINES MANUAL ("USSG") § 2L1.2(a) (2005), the presentence investigation report ("PSR") recommended a base offense level of 8 for Garcia. Based on Garcia's prior Texas conviction for "delivery of a controlled substance" under TEX. HEALTH & SAFETY CODE ANN. § 481.112(a), the PSR recommended a 12-level enhancement to Garcia's offense level under USSG § 2L1.2(b)(1)(B), because Garcia's prior conviction qualified as a "drug trafficking offense." The PSR also provided for a three-level reduction for acceptance of responsibility. An offense level of seventeen coupled with Garcia's criminal history category of II resulted in a guidelines range of 27-33 months imprisonment.

Garcia objected to the PSR's assessment of the statutory maximum incarceration and supervised release periods, noting that recent rulings have evidenced the Supreme Court's intent to overrule its holding in Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). The district court overruled this objection. At the sentencing hearing, Garcia's counsel stated that there were no objections to the 12-level enhancement, but asked the court to consider imposing a sentence at or below the low end of the guidelines range. In seeking lenience, counsel argued that Garcia's prior conviction involved a small amount of drugs, specifically stating that "although it's a drug trafficking crime, it's a $20 hand-to-hand transaction with an undercover officer."

The district court sentenced Garcia to 30-months in prison and two-years' supervised release. At sentencing, the record did not include any proof of Garcia's prior conviction other than the PSR and counsel's statements during the sentencing hearing. Garcia filed a timely notice of appeal and argues now that: (1) the district court erred in applying the 12-level enhancement because his Texas conviction...

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