United States v. Maldonado-Olivas

* 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that this opinion should not be published and is not precedent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. 98-41117
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOAQUIN MALDONADO-OLIVAS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. M-98-CR-98-1
--------------------
December 6, 1999
Before DAVIS, EMILIO M. GARZA, and DENNIS, Circuit Judges.
PER CURIAM:*
Joaquin Maldonado-Olivas appeals his sentence following his
guilty-plea conviction for illegal reentry into the country after
having been previously deported. Maldonado argues that the
district court erred by enhancing his offense level by 16 for a
prior aggravated felony. He contends that his prior offense of
transporting undocumented aliens is not the same as alien
smuggling and that the prior offense was not an aggravated felony
under 8 U.S.C. § 1101(a)(43)(N).
In cases involving a conviction for unlawful reentry into
the United States, the defendant’s offense level is increased by

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No. 98-41117
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16 levels if the defendant previously was deported after a
conviction for an aggravated felony. § 2L1.2(b)(1)(A). The
application notes to § 2L1.2 refers to 8 U.S.C. § 1101(a)(43) for
the definition of an aggravated felony. Under § 1101(a)(43)(N)
an “aggravated felony” includes “an offense described in
paragraph (1)(A) or (2) of section 1324(a) of this title
(relating to alien smuggling)[.]”
In United States v. Monjaras-Castaneda, 150 F.3d 326, 1999
WL 721879 (5th Cir. Sept. 16, 1999), the court held that the
parenthetical “(relating to alien smuggling)” was only
descriptive of the type of offenses covered in § 1101(a)(43) and
that the offense of alien transportation was not excluded from
the definition of an aggravated felony. Maldonado’s argument is
without merit.
AFFIRMED.

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