USA v. Rodriguez-Duberney

Filing 920090327

Opinion

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
No. 08-20358 Summary Calendar March 27, 2009 Charles R. Fulbruge III Clerk

UNITED STATES OF AMERICA Plaintiff-Appellee v. JULIO CESAR RODRIGUEZ-DUBERNEY, also known as Julio Cesar Duverney-Rodriguez, also known as Homereo Carmanno Rodriguez, also known as Julio Cesar Rodriguez, also known as Julio Cesar Rodriguez-Duberny Defendant-Appellant

Appeal from the United States District Court for the Southern District of Texas USDC No. 4:07-CR-283-ALL

Before WIENER, STEWART, AND CLEMENT, Circuit Judges. PER CURIAM:* Defendant-Appellant Julio Cesar Rodriguez-Duberney pleaded guilty to illegal reentry after deportation. On appeal, Rodriguez-Duberney challenges the district court's characterization of his prior conviction under the Travel Act, 18 U.S.C. § 1952, as a drug trafficking offense for sentencing purposes. In United States v. Rodriguez-Duberney, 326 F.3d 613, 616-18 (5th Cir. 2003), we held that

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.

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No. 08-20358 Rodriguez-Duberney's prior conviction warranted a 16-level enhancement under U.S.S.G. § 2L1.2. Rodriguez-Duberney asserts that this prior decision is flawed because we relied upon the charge alleged in a dismissed indictment rather than the information to which he pleaded guilty. He also maintains that the ruling in Rodriguez-Duberney has been called into question by subsequent case law holding that transportation of narcotics does not generally constitute a drug trafficking offense. A panel of this court may not overrule a prior panel's

decision in the absence of intervening contrary or superseding authority. United States v. Rodriguez-Jaimes, 481 F.3d 283, 288 (5th Cir. 2007). The government's motion for summary affirmance is GRANTED, and its alternative motion for an extension of time to file a brief is DENIED. The judgment of the district court is AFFIRMED.

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