* 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opinion should not be published and is not precedent except under the limited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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 00-40537

Summary Calendar

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

OWEN GARTH HINKSON, also known as Charles M. Williams,

Defendant-Appellant.

--------------------

Appeal from the United States District Court

for the Eastern District of Texas

USDC No. 1:97-CR-134-2

--------------------

February 1, 2001

Before DAVIS, JONES, and DeMOSS, Circuit Judges.

PER CURIAM:*

Owen Garth Hinkson appeals his sentence for illegal

reentry into the United States after deportation. Hinkson argues

that: (1) the district court erroneously enhanced his prior

conviction for assault and battery on a police officer; (2) the

district court erred in enhancing his instant sentence pursuant to

U.S.S.G. § 2L1.2(b)(1)(A); and (3) the district court erred in

failing to void 18 U.S.C. § 1101(a)(43)(F) and U.S.S.G. §§ 2L1.2 &

4B1.2 for unconstitutional vagueness.
2

Hinkson’s first argument was not raised in the district

court and is, therefore, reviewed for plain error. See United

States v. Krout, 66 F.3d 1420, 1434 (5th Cir. 1995). There is no

merit to Hinkson’s contention that the district court enhanced his

prior conviction for assault and battery on a police officer.

Rather, the district court enhanced Hinkson’s instant sentence for

illegal reentry based on its determination that his deportation

followed his aggravated felony conviction for assault and battery

on a police officer. See U.S.S.G. § 2L1.2(b)(1)(A). The district

court did not plainly err in this regard. See Krout, 66 F.3d at

1434 (holding that plain error requires a clear or obvious error

that affected the defendant’s substantial rights). 

Hinkson’s assertion that the district court erred in

applying U.S.S.G. § 2L1.2(b)(1)(A) is based on his claim that under

United States v. Delgado-Enriquez, 188 F.3d 592, 594 (5th Cir.

1999), his conviction for assault and battery on a police officer

was not an aggravated felony because it carried a sentence of only

one year. In Delgado-Enriquez, 188 F.3d at 594, this court

paraphrased 18 U.S.C. § 1101(a)(43)(F) by stating that “a ‘crime of

violence’ is an aggravated felony when it meets the definition

found in 18 U.S.C. § 16 for non-political offenses for which the

term of imprisonment is more than one year.” The Delgado-Enriquez

decision, however, did not turn on whether the offense at issue

carried an imprisonment term of one year or more than one year.

188 F.3d at 595. 

Moreover, in a decision rendered prior to DelgadoEnriquez, this court recognized that 8 U.S.C. § 1101(a)(43)(F)
3

defines the term “aggravated felony” to include a crime of violence

carrying a sentence of “‘at least one year.’” See United States v.

Banda-Zamora, 178 F.3d 728, 729-30 (5th Cir. 1999). To the extent

that these two decisions conflict, Banda-Zamora, as the earlier

opinion, controls. See United States v. Jackson, 220 F.3d 635, 639

(5th Cir. 2000). Thus, the district court did not err in applying

U.S.S.G. § 2L1.2(b)(1)(A) to enhance Hinkson’s sentence.

Finally, Hinkson’s unconstitutional vagueness arguments,

which were raised for the first time on appeal, are without merit.

Hinkson’s void-for-vagueness challenge to 18 U.S.C. 

§ 1101(a)(43)(F) based on a missing word in that provision was

rejected by this court in Banda-Zamora, 178 F.3d at 729-30. And

Hinkson’s unconstitutional vagueness argument with respect to

U.S.S.G. §§ 2L1.2 & 4B1.2 is unfounded because he is challenging

sentencing guidelines, not a criminal statute. See United States

v. Pearson, 910 F.2d 221, 223 (5th Cir. 1990) (“Due process does

not mandate . . . notice, advice, or a probable prediction of

where, within the statutory range, the guideline sentence will

fall”); United States v. Arevalo-Sanchez, No. 98-20093, p. 3 (5th

Cir. Sept. 23, 1998) (unpublished). The district court did not

plainly err in failing to void 18 U.S.C. § 1101(a)(43)(F) and

U.S.S.G. §§ 2L1.2 & 4B1.2 for unconstitutional vagueness. See

Krout, 66 F.3d at 1434.

AFFIRMED.