* 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this opinion should not be published and is not precedent except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. 03-40820

Conference Calendar

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

EPIMENIO RAMIREZ-GONZALEZ,

Defendant-Appellant.

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

Appeal from the United States District Court

for the Southern District of Texas

USDC No. L-03-CR-344-ALL

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

Before HIGGINBOTHAM, DAVIS, and PICKERING, Circuit Judges.

PER CURIAM:*

Epimenio Ramirez-Gonzalez appeals from his guilty-plea

conviction and sentence for being illegally present in the United

States after being previously deported in violation of 8 U.S.C.

§ 1326. He argues that the district court erred in imposing a

16-level increase in his offense level pursuant to U.S.S.G.

§ 2L1.2(b)(1)(A) based on his prior aggravated assault

conviction. He contends that the Sentencing Commission intended

that the 16-level increase should be applied only to those crimes

United States Court of Appeals

Fifth Circuit

F I L E D

August 17, 2004

Charles R. Fulbruge III

Clerk
No. 03-40820

-2-

of violence that are also aggravated felonies under 8 U.S.C.

§ 1101(a)(43). Under the plain language of U.S.S.G.

§ 2L1.2(b)(1)(A) and its commentary, the district court did not

err in imposing the 16-level increase based upon RamirezGonzalez’s prior aggravated assault conviction.

Ramirez-Gonzalez also argues that the district court erred

by assessing two criminal history points for his prior aggravated

assault conviction. Because this argument is raised for the

first time on appeal, it is reviewed only for plain error. See

United States v. Olano, 507 U.S. 725, 732 (1993); FED. R. CRIM. P.

52(b). When reviewing for plain error in the sentencing context,

“this court has concluded that if the trial judge, on remand,

could reinstate the same sentence, it will uphold the sentence

imposed despite the trial court’s error.” United States v.

Leonard, 157 F.3d 343, 346 (5th Cir. 1998)(citations omitted). 

Ramirez-Gonzalez admits that, even if his criminal history score

were corrected, the district court could impose the same 70-

month sentence on remand. Accordingly, Ramirez-Gonzalez has not

shown plain error. See id.

Ramirez-Gonzalez acknowledges that Leonard continues to be

binding precedent in the sentencing guidelines context, but he

contends that this court should apply the presumed-prejudice

approach adopted in United States v. Reyna, 358 F.3d 344 (5th

Cir.) (en banc), cert. denied, 124 S. Ct. 2390 (2004). One panel

may not overrule the decisions of another without en banc
No. 03-40820

-3-

consideration or an intervening Supreme Court opinion. See Hogue

v. Johnson, 131 F.3d 466, 491 (5th Cir. 1997). The en banc

decision in Reyna did not extend the presumption of prejudice to

errors that result in the application of an incorrect guideline

range. See Reyna, 358 F.3d at 353.

For the first time on appeal, Ramirez-Gonzalez argues that 

8 U.S.C. § 1326(b) is unconstitutional on its face and as applied

in his case because it does not require the fact of a prior

felony or aggravated felony conviction to be charged in the

indictment and proved beyond a reasonable doubt. He thus

contends that his sentence is invalid and argues that it should

not exceed the two-year maximum term of imprisonment prescribed

in 8 U.S.C. § 1326(a).

Ramirez-Gonzalez acknowledges that his argument is

foreclosed by Almendarez-Torres v. United States, 523 U.S. 224

(1998), but asserts that the decision has been cast into doubt by

Apprendi v. New Jersey, 530 U.S. 466, 490 (2000). He seeks to

preserve his argument for further review. Apprendi did not

overrule Almendarez-Torres. See Apprendi, 530 U.S. at 489-90;

United States v. Dabeit, 231 F.3d 979, 984 (5th Cir. 2000). This

court must follow Almendarez-Torres “unless and until the Supreme

Court itself determines to overrule it.” Dabeit, 231 F.3d at 984

(internal quotation marks and citation omitted).

AFFIRMED.