IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 02-40204 Summary Calendar

UNITED STATES OF AMERICA

Plaintiff - Appellee

v.

CARLOS MANCILLAS, also known as Juan Carlos Mendoza Villarreal

Defendant - Appellant

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. B-01-CR-436-1 -------------------- November 7, 2002

Before KING, Chief Judge, and DeMOSS and BENAVIDES, Circuit Judges.

PER CURIAM:*

Carlos Mancillas appeals his 57-month sentence following his

guilty-plea conviction for unlawful reentry after deportation

subsequent to an aggravated felony conviction, a violation of

. Mancillas argues that the district court erred by

relying on information outside of the prior indictment and

judgment to justify an enhancement under U.S.S.G.

§ 2L1.2(b)(1)(A).

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. No. 02-40204 -2-

Section 2L1.2(b)(1)(A)(vii) (Nov. 2001), mandates a 16-level

increase to the base offense level if the defendant previously

was deported after a conviction for a felony that is “an alien

smuggling offense committed for profit.” The PSR stated that the

investigative report for the prior offense indicated that the

offense was committed for profit.

In arguing that the district court misapplied U.S.S.G.

§ 2L1.2(b)(1)(A)(vii), Mancillas contends that the reasoning from

our decisions interpreting the “career offender” guidelines,

U.S.S.G. §§ 4B1.1 and 4B1.2, should be applied in his case. In

interpreting those provisions, this court has held that only

conduct charged in the indictment, and not the underlying

conduct, may be considered in determining whether the offense is

a crime of violence or a controlled substance offense. See

United States v. Gaitan,

(5th Cir. 1992);

United States v. Fitzhugh,

(5th Cir. 1992).

Our holdings in Gaitan and Fitzhugh were based on specific

language contained in the commentary to U.S.S.G. § 4B1.2,

limiting the sentencing court’s inquiry to the conduct alleged in

the indictment in determining whether the enhancement applies.

See Gaitan,

; Fitzhugh,

.

Neither U.S.S.G. § 2L1.2 nor its commentary contains such

limiting language. Furthermore, U.S.S.G. § 1B1.3 instructs that

when determining a defendant’s “specific offense characteristics”

under Chapter Two of the Guidelines, “[c]onduct that is not No. 02-40204 -3-

formally charged or is not an element of the offense of

conviction may enter into the determination of the applicable

guideline sentencing range.” U.S.S.G. § 1B1.3, comment.

(backg’d.). Although Mancillas cites our decision in United

States v. Zavala-Sustaita,

(5th Cir.), cert. denied,

(2000), as support for his argument, that case

involved the interpretation of a statute not at issue here. See

Zavala-Sustaita,

(interpreting “sexual abuse

of a minor” under

(a)(43)(A)). We conclude,

therefore, that the district court did not misapply U.S.S.G.

§ 2L1.2(b)(1)(A)(vii).

Mancillas also argues, for the first time on appeal, that

the sentence-enhancing provisions contained in

(b)

are facially unconstitutional in light of Apprendi v. New Jersey,

(2000). He acknowledges that his argument is

foreclosed by Almendarez-Torres v. United States,

(1998), but seeks to preserve the issue for further review.

Apprendi did not overrule Almendarez-Torres. See Apprendi,

; United States v. Dabeit,

(5th

Cir. 2000), cert. denied,

(2001). This court must

follow the precedent set in Almendarez-Torres “unless and until

the Supreme Court itself determines to overrule it.” Dabeit,

(internal quotation and citation omitted).

The district court’s judgment is AFFIRMED.