IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 02-40626 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

CORNELIO RIVAS-CASTILLO,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. B-01-CR-583-ALL -------------------- December 20, 2002 Before HIGGINBOTHAM, SMITH, and CLEMENT, Circuit Judges.

PER CURIAM:*

Cornelio Rivas-Castillo (Rivas) appeals his guilty-plea

conviction and sentence for illegal reentry following deportation

in violation of

(a) and (b). He argues that the

district court erred in considering the presentence report from

his previous alien smuggling offense to determine that a 16-level

increase in his offense level was warranted under U.S.S.G.

§ 2L1.2(b)(1)(A)(vii); that transporting aliens within the United

States is not equivalent to an alien smuggling such as to warrant

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 02-40626 -2-

a 16-level increase under U.S.S.G. § 2L1.2(b)(1)(A)(vii); and

that the sentencing-enhancing provisions of

(b)

are facially unconstitutional.

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

§ 2L1.2(b)(1)(A)(vii), Rivas 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).

Importantly, 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,

; See 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 the defendant's "specific offense

characteristics" under Chapter Two of the Guidelines, "[c]onduct

that is not formally charged or is not an element of the offense

of conviction may enter into the determination of the applicable No. 02-40626 -3-

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

(backg'd.). Although Rivas cites to our decisions in United

States v. Zavala-Sustaita,

(5th Cir.), cert. denied,

(2000), and United States v. Martinez-Cortez,

(5th Cir. 1993), as support for his argument, those

cases involved the interpretation of statutes not at issue here.

Zavala-Sustaita,

(interpreting "sexual abuse

of a minor" under

(a)(43)(A)); Martinez-Cortez,

(interpreting

(e)). We

conclude, therefore, that the district court did not misapply

U.S.S.G. § 2L1.2(b)(1)(A)(vii).

Rivas next argues that transporting undocumented aliens

within the United States is not equivalent to alien smuggling so

as to warrant a 16-level increase under U.S.S.G.

§ 2L1.2(b)(1)(A). However, Rivas concedes that the issue is

foreclosed by this court’s decision in United States v. Solis-

Campozano, -- F.3d --, No. 02-50079,

(5th

Cir. November 12, 2002) and raises the issue to preserve it for

Supreme Court review.

Rivas lastly contends that the sentence-enhancing

provisions contained in

(b) are facially

unconstitutional in light of Apprendi v. New Jersey,

(2000). Rivas acknowledges that his argument is foreclosed by

Almendarez-Torres,

(1998), but seeks to preserve the

issue for further review. No. 02-40626 -4-

Based on the foregoing, the district court's judgment is

AFFIRMED.