United States v. Guerrero

* 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that this opinion should not be published and is not precedent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. 00-50314
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MANUEL GUERRERO,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Western District of Texas
USDC No. EP-99-CR-1582-1-DB
--------------------
October 19, 2000
Before SMITH, BARKSDALE, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Manuel Guerrero appeals his guilty-plea conviction for
illegal reentry into the United States, in violation of 8 U.S.C.
§ 1326. Guerrero challenges the district court’s refusal to
grant his motion for a downward departure under U.S.S.G. § 2L1.2,
comment. (n.5). He contends “that the text, history, and
policies of the Sentencing Guidelines indicate that note 5
authorizes departures for aggravated felons who received
suspended sentences, without actual incarceration, exceeding one
year.” Guerrero concedes that the issue raised in this appeal is

-- 1 of 2 --

No. 00-50314
-2-
foreclosed by our decision in United States v. Yanez-Huerta, 207
F.3d 746 (5th Cir. 2000), petition for cert. filed, (U.S. Sept.
5, 2000)(No. 00-6044), but raises his contention solely to
preserve it for review by the Supreme Court.
Both Guerrero 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). Guerrero 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.

-- 2 of 2 --