*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this opinion should not be published and is not precedent except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. 00-40747

Summary Calendar

_____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

FELIPE SOTELO-BARRERA,

Defendant-Appellant.

_________________________________________________________________

Appeal from the United States District Court for the

Southern District of Texas

USDC No. L-00-CR-101-1

_________________________________________________________________

April 23, 2001

Before JOLLY, BARKSDALE, and DENNIS, Circuit Judges.

PER CURIAM:*

Felipe Sotelo-Barrera appeals his sentence following a guilty

plea to illegal entry after deportation pursuant to 8 U.S.C.

§ 1326(b)(2).

We review the district court's application of the Sentencing

Guidelines de novo and its factual findings for clear error. See

United States v. Stevenson, 126 F.3d 662, 664 (5th Cir. 1997).

Sotelo first contends that his sentence should be vacated

because his state felony conviction for possession of a controlled
2

substance, which resulted in an increased sentence under 8 U.S.C.

§ 1326(b)(2), was an element of the offense that should have been

charged in the indictment. 

Sotelo acknowledges that his argument is foreclosed by the

Supreme Court’s decision in Almendarez-Torres v. United States, 523

U.S. 224 (1998), but he seeks to preserve the issue for Supreme

Court review in the light of the decision in Apprendi v. New

Jersey, 530 U.S. 466 (2000). 

Apprendi did not overrule Almendarez-Torres. See Apprendi,

120 S.Ct. at 2362; United States v. Dabeit, 231 F.3d 979, 984 (5th

Cir. 2000), cert. denied, No. 00-8299, 2001 WL 77067 (U.S. Feb. 26,

2001). Sotelo’s argument is foreclosed. 

Sotelo also challenges the characterization of his prior Utah

conviction for cocaine possession as an "aggravated felony" offense

and the concomitant sixteen-level increase in his base offense

level under U.S.S.G. § 2L1.2(b)(1)(A), contending that his sentence

should be reduced by the rule of lenity. Sotelo’s constitutional

claim that the rule of lenity is applicable is reviewed de novo.

United States v. Romero-Cruz, 201 F.3d 374, 377 (5th Cir.), cert.

denied, 120 S.Ct. 2017 (2000). 

In United States v. Hinojosa-Lopez, 130 F.3d 691, 692-93, 694

(5th Cir. 1997), we held that a state conviction is an “aggravated

felony” pursuant to § 2L1.2(b)(1)(A) if “(1) the offense was
3

punishable under the Controlled Substances Act and (2) it was a

felony” under applicable state law. Id. at 694. Sotelo has not

explicitly disputed that, as a matter of statutory construction,

his challenge to the § 2L1.2(b)(1)(A) increase is foreclosed by

Hinojosa-Lopez. See United States v. Garcia Abrego, 141 F.3d 142,

151 n.1 (5th Cir. 1998) (“in the absence of any intervening Supreme

Court or en banc circuit authority that conflicts” with the panel

decision in question, this court is bound by the panel decision).

He contends, however, that, under the “constitutional rule-oflenity,” his objection to the increase presents an issue of first

impression. This contention is erroneous. 

The rule of lenity fosters the constitutional due process

principle “that no individual be forced to speculate, at peril of

indictment, whether his conduct is prohibited." Dunn v. United

States, 442 U.S. 100, 112 (1979). “The rule of lenity ... applies

only when, after consulting traditional canons of statutory

construction, [a court is] left with an ambiguous statute.” United

States v. Shabani, 513 U.S. 10, 17 (1994) (emphasis added). It

applies “only if after a review of all applicable sources of

legislative intent the statute remains truly ambiguous”. United

States v. Cooper, 966 F.2d 936, 944 (5th Cir. 1992) (internal

quotation marks and citation omitted); see also Albernaz v. United

States, 450 U.S. 333, 342 (1981) (“The rule comes into operation at
4

the end of the process of construing what Congress has expressed,

not at the beginning as an overriding consideration of being

lenient to wrongdoers.” (internal quotation marks and citation

omitted)). The rule of lenity is a rule of statutory construction,

see Bifulco v. United States, 447 U.S. 381, 387 (1980); United

States v. Brito, 136 F.3d 397, 408 (5th Cir. 1998), rather than a

separate constitutional framework for raising claims. We have

already expressed our interpretation of the term “aggravated

felony” in our decision in Hinojosa-Lopez. See Hinojosa-Lopez, 130

F.3d at 693-94. 

The judgment of the district court is

A F F I R M E D.