United States v. Pineda-Cortes

* 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that this opinion should not be published and is not precedent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.
United States Court of Appeals
Fifth Circuit
F I L E D
December 5, 2003
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-41705
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ISRAEL PINEDA-CORTES,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. L-02-CR-1010-ALL
--------------------
Before JONES, BENAVIDES, and CLEMENT, Circuit Judges.
PER CURIAM:*
Israel Pineda-Cortes appeals his guilty-plea conviction and
sentence for illegal entry after deportation. Pineda argues that
a driving-while-intoxicated (DWI) sentence should not have been
assigned two criminal-history points because the sentence was
imposed more than 10 years prior to the commencement of the
instant offense. He also argues that an evading-arrest sentence
should not have been assigned any criminal-history points because

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evading arrest is similar to the offense of resisting arrest.
Pineda’s DWI sentence should not have been considered in
calculating his criminal-history score because it occurred more
than 10 years before the instant offense. U.S.S.G. § 4A1.1; see
also U.S.S.G. § 4A1.2(e)(2) and (3). Under U.S.S.G. § 4A1.2(c)
and United States v. Moore, 997 F.2d 30, 33 (5th Cir. 1993),
Pineda’s evading-arrest sentence arguably also should not have
been counted for purposes of his criminal-history score.
However, because the district court could, on remand, impose the
same 21-month sentence, Pineda fails to demonstrate that his
substantial rights were affected by the district court’s error in
calculating his criminal-history category. See United States v.
Leonard, 157 F.3d 343, 346 (5th Cir. 1998). Consequently,
despite Pineda’s argument to the contrary, he fails to satisfy
the plain-error standard of review. Id.
Pineda contends that the sentence-enhancing provisions
contained in 18 U.S.C. § 1326(b)(1) and (b)(2) are
unconstitutional on their face and as applied in light of
Apprendi v. New Jersey, 530 U.S. 466 (2000). Pineda concedes
that his challenge to the constitutionality of 8 U.S.C.
§ 1326(b)(1) and (b)(2) is foreclosed by Almendarez-Torres v.
United States, 523 U.S. 224 (1998), but he seeks to preserve the
issue for Supreme Court review. Apprendi did not overrule
Almendarez-Torres. See Apprendi, 530 U.S. at 489-90; United
States v. Dabeit, 231 F.3d 979, 984 (5th Cir. 2000). This court

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must follow the precedent set in Almendarez-Torres “unless and
until the Supreme Court itself determines to overrule it.”
Dabeit, 231 F.3d at 984 (internal quotation marks and citation
omitted). The district court’s judgment is AFFIRMED.

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