United States v. Bastidas-Nunez

* 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this opinion should not be published and is not precedent except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. 99-51198
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ALFREDO BASTIDAS-NUNEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. EP-99-CR-432-ALL
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October 19, 2000
Before SMITH, BARKSDALE, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Alfredo Bastidas-Nunez (“Bastidas”) appeals his conviction
and sentence for illegal reentry into the United states after
deportation, in violation of 8 U.S.C. § 1326. He argues that the
district court erred in denying his motion to dismiss the
indictment and in increasing his base offense level by 16 points
pursuant to U.S.S.G. § 2L1.2(b)(1)(A), on the basis that his
prior convictions for transporting and concealing aliens
constituted aggravated felonies. He argues that transporting and

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No. 99-51198
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concealing aliens within the United States does not constitute an
aggravated felony under 8 U.S.C. § 1101(a)(43)(N).
As Bastidas acknowledges, his position is foreclosed by our
opinions in United States v. Monjaras-Castaneda, 190 F.3d 326,
331 (5th Cir. 1999), cert. denied, 120 S. Ct. 1254 (2000), and
Ruiz-Romero v. Reno, 205 F.3d 837, 839-40 (5th Cir. 2000).
Both Bastidas and the government have filed motions for
leave to file supplemental briefs. The motions are granted.
Appellant in his supplemental brief argues that the Supreme Court
in Apprendi v. New Jersey, 120 S. Ct. 2348 (2000) effectively
overruled Almendarez-Torres v. United States, 523 U.S. 224
(1998). He argues that if Apprendi undermines Almendarez-Torres,
his sentence, which was enhanced pursuant to 8 U.S.C.
§ 1326(b)(2), is invalid, and he should be resentenced under 8
U.S.C. § 1326(a). Bastidas acknowledges that this court does not
have the authority to overrule Almendarez-Torres and states that
he is raising the issue solely to preserve it for possible
Supreme Court review. Almendarez-Torres forecloses this
argument.
AFFIRMED; BOTH PARTIES’ MOTIONS FOR LEAVE TO FILE
SUPPLEMENTAL BRIEFS GRANTED.

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