                                                   NOT PRECEDENTIAL

        UNITED STATES COURT OF APPEALS
             FOR THE THIRD CIRCUIT




                        No. 09-2666


              UNITED STATES OF AMERICA

                              v.

                 ADAN DIRICIO-TELLER,
                 a/k/a Jose Villalovos-Tellez,
               a/k/a Jose Luis Tellez Villalbas,
              a/k/a Jose Luis Tellez Villalovos,
                 a/k/a Manuel Ramos-Tacuba

                 ADAN DIRICIO-TELLER,

                                                   Appellant


      On Appeal from the United States District Court
         for the Eastern District of Pennsylvania
               (D.C. Crim. No. 08-00652-1)
       Honorable Gene E.K. Pratter, District Judge


      Submitted Pursuant to Third Circuit LAR 34.1(a)
                      March 9, 2010


BEFORE: MCKEE, BARRY, and GREENBERG, Circuit Judges

                  (Filed: April 6, 2010)


               OPINION OF THE COURT
GREENBERG, Circuit Judge.
    This matter comes on before the Court on an appeal by Adan Diricio-Teller from a

judgment of conviction and sentence entered in this criminal case on June 2, 2009. A

grand jury returned an indictment against Diricio-Teller charging him with having

illegally entered the United States following his deportation thus violating 8 U.S.C. §§

1326(a) and (b)(2). Diricio-Teller pleaded guilty and the District Court sentenced him to

a custodial term of 50 months to be followed by a three-year term of supervised release.

The District Court had jurisdiction under 18 U.S.C. § 3231 and we have jurisdiction

under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291.

       The District Court calculated Diricio-Teller’s sentencing guideline range as

follows. The sentencing guidelines established his base offense level in U.S.S.G. §

2L1.2(a) as 8 but provided for a 16-level increase in U.S.S.G. § 2L1.2(b)(1) because he

had been deported after being convicted of an alien smuggling offense. The Court,

however, reduced his offense level by 3 levels under U.S.S.G. § 3E1.1 by reason of his

acceptance of responsibility. Thus, his total offense level was 21 which, when applied

with his criminal history category of IV, yielded a guidelines range of 57 to 71 months.

Diricio-Teller does not contend that these calculations were incorrect.

       Nevertheless, Diricio-Teller challenges his sentence on three bases. First, he

contends that the sentence was procedurally unreasonable because the District Court did

not meaningfully address his argument that he should have been given a variance from

the guidelines range because his underlying conviction was for a “relatively minor . . .

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‘alien smuggling’ offense” as he was a mere foot guide in the offense. Appellant’s br. at

14. Second, he contends that we should remand the case for resentencing in light of our

decision in United States v. Arrelucea-Zamudio, 581 F.3d 142 (3d Cir. 2009), as we

decided that case after the sentencing in this case. In Arrelucea-Zamudio we held that in

a district that does not have a fast track program which permits a 4-level offense level

reduction predicated on a defendant’s guilty plea and waiver of certain rights in illegal

reentry cases, a court may grant a variance from the guideline range, thus mitigating the

disparity between non-fast track and fast track districts. Finally, he contends that his Fifth

and Sixth Amendment rights were violated when the statutory maximum sentence for his

offense was increased from two to 20 years under 8 U.S.C. § 1326(b)(2) by reason of his

prior conviction in an illegal entry case. In this regard he points out that the indictment

did not charge that he had been convicted in the earlier case.

       We reject all of Diricio-Teller’s contentions. First, the District Court did not

believe that the 16-level enhancement reflecting his underlying conviction was too harsh

because his offense in this case was a repeat offense for the same type of conduct in

which he had engaged previously. Second, we see no need to remand in the light of

Arrelucea-Zamudio for it is clear that the District Court applied the law as we later

recognized it to be in that case. In this regard we point out that the District Court when

sentencing Diricio-Teller accepted his fast track argument for it said that it could

“accomplish the same thing I want to accomplish by simply exercising my discretion in a



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way that accounts for my hope that your family ties will be important for the next time

you think about breaking the law again.” App. at 137-38. Then the Court granted

Diricio-Teller a seven-month downward variance. Finally, the Supreme Court opinion in

Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219 (1998), precludes us

from accepting Diricio-Teller’s Fifth and Sixth Amendment arguments.

       For the foregoing reasons the judgment of conviction and sentence entered June 2,

2009, will be affirmed.




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