USA v. David Del Carman-Gomez

Filing 920100624

Case: 09-40956

Document: 00511149301

Page: 1

Date Filed: 06/22/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
No. 09-40956 Conference Calendar June 22, 2010 Lyle W. Cayce Clerk

UNITED STATES OF AMERICA, Plaintiff-Appellee v. DAVID INOCENCIO DEL CARMAN-GOMEZ, 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. PER CURIAM:* 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 (2000). Because Del Carman-Gomez did not raise these claims in the district

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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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Case: 09-40956

Document: 00511149301 Page: 2 No. 09-40956

Date Filed: 06/22/2010

court, plain error review applies. See Puckett v. United States, 129 S. Ct. 1423, 1429 (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, 130 S. Ct. 378 (2009). His argument regarding the constitutionality of § 1326 is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235 (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.

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