* Pursuant to 5 TH C IR

. 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this opinion should not be published and is not precedent except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 5 TH C IR

. R. 47.5.4. United States Court of Appeals

Fifth Circuit



## FILED

June 4, 2003

Charles R. Fulbruge III

Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 02-41580

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

IGNACIO GARCIA-HERNANDEZ,

Defendant-Appellant.

-------------------- Appeal from the United States District Court

for the Southern District of Texas

USDC No. M-02-CR-395-1

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

Before JONES, STEWART and DENNIS, Circuit Judges.

PER CURIAM: *

Ignacio Garcia-Hernandez (“Garcia”) pleaded guilty to

illegal reentry into the United States after having been deported,

a violation of 8 U.S.C. § 1326, and was sentenced to 37 months in

prison and three years of supervised release. He now appeals his

conviction and sentence.

Garcia argues that the district court erred in imposing

a 16-level offense-level increase based on his prior aggravatedassault conviction, for which he had been sentenced to 10 years of

probation, under U.S.S.G. § 2L1.2(b)(1)(A)(ii) (Nov. 2001).No. 02-41580

-2-

Acknowledging that the 16-level increase was warranted under

the “literal terms” of the guideline, he suggests that, in amending

§ 2L1.2, the Sentencing Commission could not have intended

tha t a prior offense that did not even qualify as an “aggravated

felony”--i.e., a felony for which the defendant had been sentenced

to one year or more in prison--receive the full 16-level increase.

Interpretation of the Sentencing Guidelines is subject to ordinary

rules of statutory construction, and if the guideline’s language is

unambiguous, our inquiry begins and ends with an analysis of the

plain meaning of that language. U nited States v. Carbajal

, 290

F.3d 277, 283 (5th Cir.), cert. denied

, 123 S. Ct. 34 (2002). The

only exception to this rule is when a clear contrary legislative

intention is shown, an exception that applies only in “rare and

exceptional circumstances.” S ee Ardest ani v. INS , 502 U.S. 129,

135-36 (1991). Garcia has not established that the commentary to

and history of the amended § 2L1.2 establish that the Commission

did not intend that some offenses that do not qualify as

“aggravated felonies” within the meaning of the guide line

nonetheless warrant the guideline’s top offense-level increase.

Garcia also contends that 8 U.S.C. § 1326(b) is

unconstitutional on its face under Apprendi v. New Jersey

, 530 U.S.

466 (2000), in that the felony “element” of the offense need not be

submitted to the factfinder for proof. As Garcia concedes, his

contention regarding Apprendi is foreclosed by the caselaw of this

court and by Apprendi itself. S ee Unit ed States v. Dabeit , 231No. 02-41580

-3-

F.3d 979, 984 ( 5th Cir. 2000) (noting that the Supreme Court in

Apprendi

, 530 U.S. at 489-90, expressly decline d to overrule the

controlling Almen darez-Torres v. United States , 523 U.S. 224

(1998)). Garcia raises this issue to preserve it for review by the

Supreme Court.

Garcia’s conviction and sentence are AFFIRMED

.