Filed: Mar. 08, 2007
Latest Update: Feb. 21, 2020
Summary: United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS March 8, 2007 FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk No. 06-20253 Summary Calendar UNITED STATES OF AMERICA, Plaintiff- Appellee, versus JAIME SOLIS-CAMPUZANO, also known as Jaime Solis-Campozano, also known as Jaime Solis-Campusano, also known as Javier Soliz-Camposano, also known as Elias Gaona-Vargas, also known as Jaime Gaona-Vargas, also known as Eduardo Alejandro Berrones-Garza, Defend
Summary: United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS March 8, 2007 FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk No. 06-20253 Summary Calendar UNITED STATES OF AMERICA, Plaintiff- Appellee, versus JAIME SOLIS-CAMPUZANO, also known as Jaime Solis-Campozano, also known as Jaime Solis-Campusano, also known as Javier Soliz-Camposano, also known as Elias Gaona-Vargas, also known as Jaime Gaona-Vargas, also known as Eduardo Alejandro Berrones-Garza, Defenda..
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United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
March 8, 2007
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 06-20253
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-
Appellee,
versus
JAIME SOLIS-CAMPUZANO,
also known as Jaime Solis-Campozano,
also known as Jaime Solis-Campusano,
also known as Javier Soliz-Camposano,
also known as Elias Gaona-Vargas,
also known as Jaime Gaona-Vargas,
also known as Eduardo Alejandro Berrones-Garza,
Defendant-
Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:05-CR-412-1
----------------------------------------------------------
Before DeMOSS, STEWART and PRADO, Circuit Judges.
PER CURIAM:*
Jamie Solis-Campuzano (Solis) appeals his guilty-plea conviction and sentence for violating
8 U.S.C. § 1326(a) and (b) by re-entering the United States without permission after having been
*
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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
convicted of an aggravated felony and deported. Solis was also charged with unlawful possession
of a firearm by an illegal alien.
Solis challenges the constitutionality of § 1326(b)’s treatment of prior felony and aggravated
felony convictions as sentencing factors rather than elements of the offense that must be found by a
jury, in light of Apprendi v. New Jersey, 530 U.S. 466 (2000). Solis’s constitutional challenge is
foreclosed by Almendarez-Torres v. United States,
523 U.S. 224, 235 (1998). Although Solis
contends that Almendarez-Torres was incorrectly decided and that a majority of the Supreme Court
would overrule Almendarez-Torres in light of Apprendi, we have repeatedly rejected such arguments
on the basis that Almendarez-Torres remains binding. See United States v. Garza-Lopez,
410 F.3d
268, 276 (5th Cir.), cert. denied,
126 S. Ct. 298 (2005). Solis properly concedes that his argument
is foreclosed in light of Almendarez-Torres and circuit precedent, but he raises it here to preserve it
for further review.
Solis also argues that the Government breached the terms of the plea agreement by failing to
move to dismiss the firearm charge at his sentencing hearing. The Government concedes that it
agreed to dismiss the firearm charge and joins Solis in seeking remand. However, the written
judgment entered by the district court indicated that the “Count(s) remaining is dismissed on the
motion of the United States.”
Where, as here, there was no objection to the breach of a plea agreement, the issue is
reviewed for plain error. United States v. Brown, 328 F.3d 787, 790 (5th Cir. 2003). “‘The law is
well settled that if there were any conflict between the oral pronouncement of judgment and the
written judgment itself, the terms of the oral pronouncement would control,’” but this court will allow
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a written judgment to clarify “an ambiguous oral sentence.” Schurmann v. United States, 658 F.2d
389, 391 (5th Cir. 1981) (quoting Scott v. United States,
434 F.2d 11, 20 (5th Cir. 1970)).
Like the oral judgment at issue in Schurmann, the oral judgment of the district court in this
case is silent on the point at issue and is therefore ambiguous. See id. at 389-90. The added detail
provided by the written judgment clearly demonstrates that the district court intended that the firearm
charge be “dismissed on the motion of the United States,” especially in light of the other evidence in
the record that the Government promised to dismiss the firearm charge, as it now concedes. See
Shurmann, 658 F.2d at 390-91. Because the firearm count against Solis has already been dismissed
by the district court, there was no plain error, see
Brown, 328 F.3d at 790, and remand is not
necessary.
Schurmann, 658 F.2d at 390-91.
AFFIRMED.
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