United States Court of Appeals

Fifth Circuit

FILED

October 29, 2003

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 03-40470 

Summary Calendar

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

NOE DEL VALLE, also known as Blas Dimas Lozano,

also known as Edward Barrera, also known as FNU LNU,

Defendant-Appellant.

 

Consolidated with

No. 03-40487 

 

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

versus

NOE DEL VALLE-MEJIA, also known as Blas Dimas Lozano,

also known as Edward Barrera, also known as Alberto

Mendoza-Meza,

Defendant-Appellant.

______________________

Appeal from the United States District Court

for the Southern District of Texas

USDC No. B-01-CR-318-1

USDC No. B-02-CR-323-ALL

______________________
* 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this opinion should not be published and is not precedent except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.

1 See Cinel v. Connick, 15 F.3d 1338, 1345 (5th Cir. 1994).

2 319 F.3d 677 (5th Cir.), cert. denied, No. 03-5581, 2003

WL 21801681 (U.S. Oct. 6, 2003).

2

Before HIGGINBOTHAM, DAVIS, and PRADO, Circuit Judges.

PER CURIAM:*

Noe Del Valle ("Del Valle"), also known as Noe Del ValleMejia, appeals from his guilty-plea conviction and sentence for

illegal reentry following deportation in violation of 8 U.S.C. §

1326. He also appeals from the revocation of his supervised

release, which was imposed as a result of his illegal reentry. 

Del Valle has not raised in his opening brief any error with

respect to the district court's revocation of his supervised

release. Accordingly, he has abandoned that issue on appeal.1

With respect to his sentence for illegal reentry, Del Valle

argues that the district court erred in going beyond the statute of

conviction and the charging instrument for his prior offense to

determine that a 16-level increase in his offense level was

warranted under U.S.S.G. § 2L1.2(b)(1)(A)(vii). As Del Valle

concedes, this argument is foreclosed by our decision in United

States v. Sanchez-Garcia,

2 where we held that a district court is

not limited to the statute of conviction and charging instrument

in determining whether an increase is warranted under §
3 312 F.3d 164, 167-68 (5th Cir. 2002), cert. denied, 123 S.

Ct. 1811 (2003).

4 523 U.S. 224, 239-47 (1998).

5 530 U.S. 466, 490 (2000).

3

2L1.2(b)(1)(A)(vii). Thus, the 16-level increase to Del Valle's

offense level was not error.

Del Valle also challenges the 16-level increase in his offense

level on the basis that his 2001 conviction for transporting a

certain alien within the United States is not an “alien smuggling

offense” for purposes of § 2L1.2(b)(1)(A). He acknowledges that

this argument is foreclosed by United States v. Solis-Campozano,

3

where we held that the term "alien smuggling offense" includes the

offense of transporting aliens within the United States. Thus, the

16-level increase to Del Valle's offense level was not error.

Finally, Del Valle argues that the "felony" and "aggravated

felony" provisions of 8 U.S.C. § 1326(b) are unconstitutional

because a prior felony conviction is an element of the offense of

illegal reentry, not merely a sentence enhancement, and should have

been charged in the indictment and proven beyond a reasonable

doubt. He acknowledges that his argument is foreclosed by the

Supreme Court's decision in Almendarez-Torres v. United States,

4

but he seeks to preserve it for possible further review in light of

Apprendi v. New Jersey.

5 Apprendi did not overrule
6 Id. at 489-90. 

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

2000)(internal quotation marks and citation omitted). 

4

Almendarez-Torres.

6 We must follow Almendarez-Torres "unless and

until the Supreme Court itself determines to overrule it."7

 AFFIRMED.