Opinion
No. 09-40956 Conference Calendar.
June 22, 2010.
James Lee Turner, Assistant U.S. Attorney, U.S. Attorney's Office, Houston, TX, for Plaintiff-Appellee.
Alfred H. Montelongo, Montelongo Montelongo, Corpus Christi, TX, for Defendant-Appellant.
Appeal from the United States District Court for the Southern District of Texas, USDC No. 2-.09-CR-392-1.
Before JOLLY, STEWART, and OWEN, Circuit Judges.
David Inocencio Del Carman-Gomez appeals his guilty plea conviction and sentence for illegal reentry in violation of 8 U.S.C. § 1326. He contends that the district court erroneously used his aggravated felony conviction to increase both his base offense level and his criminal history score. He also argues that § 1326(b) is unconstitutional in light of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Because Del Carman-Gomez did not raise these claims in the district court, plain error review applies. See Puckett v. United States, ___ U.S. ___, 129 S.Ct. 1423, 1429, 173 L.Ed.2d 266 (2009).
Del Carman-Gomez's double-counting argument is without merit because the Guidelines specifically state that a conviction used to increase an offense level may also be used in calculating a defendant's criminal history score. See U.S.S.G. § 2L1.2, comment, (n. 6); see also United States v. Duarte, 569 F.3d 528, 529-31 (5th Cir.), cert. denied, ___ U.S. ___, 130 S.Ct. 378, 175 L.Ed.2d 231 (2009). His argument regarding the constitutionality of § 1326 is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). See United States v. Pineda-Arrellano, 492 F.3d 624, 625 (5th Cir. 2007). Therefore, Del Carman-Gomez has not shown error, plain or otherwise. Accordingly, the district court's judgment is AFFIRMED.