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 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this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR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.

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 fro m his guilty-plea conviction and sentence for illegal reentry following deportation in viol ation 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 sup ervised 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 forecl osed by our decision in U nited

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)(v ii). 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

t his argument is foreclosed by United States v. Solis-Campoza no , 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.
Finall y, 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 cha rged 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 overrule6 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 A lmendarez-Torres "unless and until the Supreme Court itself determines to overrule it." 7

AFFIRMED.