USA v. Maher Haddad

Filing

UNPUBLISHED OPINION FILED. [11-20089 Affirmed] Judge: WED , Judge: HRD , Judge: CH. Mandate pull date is 03/28/2012 for Appellant Maher Jameel Haddad [11-20089]

Case: 11-20089

Document: 00511779938

Page: 1

Date Filed: 03/07/2012

IN THE UNITED STATES COURT OF APPEALS
United States Court of Appeals
FOR THE FIFTH CIRCUIT
Fifth Circuit

FILED
No. 11-20089
Summary Calendar

March 7, 2012
Lyle W. Cayce
Clerk

UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
MAHER JAMEEL HADDAD, also known as Maher Haddad, also known as
Maher J. Haddad,
Defendant-Appellant

Appeals from the United States District Court
for the Southern District of Texas
USDC No. 4:10-CR-121-1

Before DAVIS, DeMOSS, and HAYNES, Circuit Judges.
PER CURIAM:*
Having pleaded guilty, Maher Jameel Haddad appeals his conviction and
sentence for illegal reentry following deportation. He argues that his conviction
and sentence under 8 U.S.C. § 1326(b)(2) must be vacated because he does not
have a prior conviction that is an aggravated felony under the Immigration and
Nationality Act, and he challenges a 12-level increase in his offense level,
arguing that the Texas conviction used to enhance his sentence is not a “drug

*

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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

Case: 11-20089

Document: 00511779938

Page: 2

Date Filed: 03/07/2012

No. 11-20089
trafficking offense” under U.S.S.G. § 2L1.2(b)(1)(B). He contends that he was
wrongly assessed criminal history points for offenses committed more than ten
years prior to the instant offense. Finally, he argues that the district court erred
by citing conduct for which he was not prosecuted in support of its decision to
deny a downward departure.
Because Haddad did not challenge his conviction and sentence under
§ 1326(b)(2) in the district court, his arguments are reviewed for plain error.
Puckett v. United States, 556 U.S. 129, 133-34 (2009). To show plain error, he
must show a forfeited error that is clear or obvious and that affects his
substantial rights. Id. at 135. If he makes such a showing, we have the
discretion to correct the error but only if it seriously affects the fairness,
integrity, or public reputation of judicial proceedings. Id.
No plain error occurred as § 1326(b)(1) and (2) are sentencing factors
rather than elements of the offense of illegal reentry. See Almendarez-Torres v.
United States, 523 U.S. 224, 235, 247 (1998). Haddad has waived any argument
based on the contention that the conviction supporting his sentence under
§ 1326(b) predates the September 30, 1996, effective date of the Illegal
Immigration Reform and Immigration Responsibility Act. See United States v.
Lindell, 881 F.2d 1313, 1325 (5th Cir. 1989).
The district court did not err in imposing an enhanced sentence under
§ 2L1.2(b)(1)(B). Under the Sentencing Guidelines, Haddad’s Texas conviction
for delivery of a controlled substance is considered a “drug trafficking offense.”
See United States v. Marban-Calderon, 631 F.3d 210, 212-13 (5th Cir.), cert.
denied, 132 S. Ct. 129 (2011). The sentencing court also did not err in assessing
criminal history points for 1996 and 1998 misdemeanor convictions as it is
undisputed that they occurred within ten years of Haddad’s unauthorized return
to this country. See United States v. Santana-Castellano, 74 F.3d 593, 598 (5th
Cir. 1996); see also United States v. Vargas-Garcia, 434 F.3d 345, 349 (5th Cir.
2005). We lack jurisdiction to review the denial of a downward departure in this
2

Case: 11-20089

Document: 00511779938

Page: 3

Date Filed: 03/07/2012

No. 11-20089
case as Haddad has identified no record evidence “indicating that the district
court held an erroneous belief that it lacked the authority to depart.” United
States v. Hernandez, 457 F.3d 416, 424 & n.5 (5th Cir. 2006).
AFFIRMED.

3