* 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that this opinion should not be published and is not precedent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. 01-41484

Summary Calendar

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

LEONARDO MAURICIO LOPEZ-CANTU,

Defendant-Appellant.

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

Appeal from the United States District Court

for the Southern District of Texas

USDC No. M-01-CR-555-1 

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

January 16, 2003

Before HIGGINBOTHAM, SMITH, and CLEMENT, Circuit Judges.

PER CURIAM:*

Leonardo Mauricio Lopez-Cantu appeals his guilty-plea

conviction and sentence for illegally reentering the United

States after a previous deportation subsequent to a conviction

for an aggravated felony. Lopez argues that the district court

erred in relying on his aggravated-assault conviction in

increasing his offense level because Lopez was not deported after 

that conviction. Lopez alternatively argues that the increase in
No. 01-41484

-2-

his offense level cannot be based on his prior alien-smuggling

convictions because the presentence report relied on by the

district court did not establish that those convictions included

as an element of the offense that they were committed for profit.

Lopez further argues that the district court erred in

relying on Lopez’s prior conviction for transporting undocumented

aliens because that is not an alien-smuggling conviction under

U.S.S.G. § 2L1.2. However, in his reply brief, Lopez concedes

that this argument is foreclosed by this court’s recent decision

in United States v. Solis-Campozano, 312 F.3d 164, 167-68 (5th

Cir. 2002). Lopez states that he asserts the argument to

preserve it for further review.

In Solis-Campozano, this court held that the term “alien

smuggling offense,” as used in the 16-level enhancement for a

defendant who was previously deported for an alien smuggling

offense, includes transporting aliens within the United States.

312 F.3d at 167-68. Thus, under Solis-Campozano, the 16-level

increase to Lopez’s offense level because Lopez previously was

deported for transporting aliens within the United States was not

error, plain or otherwise. Because the 16-level increase was

proper given Lopez’s prior conviction for transporting aliens

within the United States, we do not consider whether the increase

also was proper based on Lopez’s other prior convictions. 

Lopez also argues for the first time on appeal that 8 U.S.C.

§ 1326(b)(2) is unconstitutional because it does not require the
No. 01-41484

-3-

prior aggravated felony conviction to be proven as an element of

the offense. Lopez concedes that this argument is foreclosed by

Almendarez-Torres v. United States, 523 U.S. 224 (1998). He

nevertheless 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, 530 U.S. at 490; see also United States v. Dabeit, 231

F.3d 979, 984 (5th Cir. 2000), cert. denied, 531 U.S. 1202

(2001). We must follow the precedent set in Almendarez-Torres

“unless and until the Supreme Court itself determines to overrule

it.” Dabeit, 231 F.3d at 984 (internal quotation and citation

omitted). The district court’s judgment is AFFIRMED.