                                                               United States Court of Appeals
                                                                        Fifth Circuit
                                                                     F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                         May 17, 2006

                                                                 Charles R. Fulbruge III
                                                                         Clerk
                               No. 05-50404
                             Summary Calendar


                       UNITED STATES OF AMERICA,

                                                       Plaintiff-Appellee,

                                  versus

                      ADALI ANTONIO CASTRO-RIVAS,

                                                       Defendant-Appellant.

                         --------------------
            Appeal from the United States District Court
                  for the Western District of Texas
                      USDC No. 3:04-CR-2124-ALL
                         --------------------

Before JONES, Chief Judge, and BARKSDALE and BENAVIDES, Circuit
Judges.

PER CURIAM:*

      Adali Antonio Castro-Rivas (Castro) appeals his guilty-plea

conviction and sentence for illegally reentering the United States

after a previous deportation, in violation of 8 U.S.C. § 1326.

Castro was sentenced to 60 months in prison and three years of

supervised release.

      For the first time on appeal, Castro argues that 8 U.S.C.

§   1326   is   unconstitutionally    overbroad   in    that   it   makes     no

exception for aliens who qualify as “refugees” under the 1951



      *
            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opinion should not be published and is not precedent except under the limited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.
United Nations Convention Relating to the Status of Refugees

(Convention), an international treaty to which the United States

acceded in 1968, as part of the 1967 United Nations Protocol

Relating to the Status of Refugees (Protocol).                 Castro observes

that, under the immigration statutory scheme, only the Attorney

General, not a district court, may determine the “refugee” status

of   an   alien.   He   contends   that   this    civil       determination   is

insufficient to comply with due-process protections to which a

criminal    defendant   is   entitled     and    that     a    district   court

considering criminal sanctions under § 1326 should thus be given

jurisdiction to make a threshold determination of such status.

      We review Castro’s challenge to 8 U.S.C. § 1326, raised for

the first time on appeal, for plain error only.               See United States

v. Lankford, 196 F.3d 563, 570 (5th Cir. 1999).                      Under the

plain-error standard, the defendant must show that (1) there was

error; (2) the error was plain, that is, “clear” or “obvious”; and

(3) the error affected the defendant’s substantial rights.                United

States v. Calverley, 37 F.3d 160, 162-64 (5th Cir. 1994) (en banc).

If all three elements are satisfied, this court has discretion to

correct the error if it affects the fairness, integrity, or public

reputation of the judicial proceedings.           United States v. Olano,

507 U.S. 725, 732 (1993).

      At the time of the accession to the Protocol in 1968, “[t]he

President and the Senate believed that the Protocol was largely

consistent with existing [immigration] law,” and “[t]here are many

                                    2
statements    to    that   effect      in    the   legislative     history     of   the

accession[.]”       INS v. Stevic, 467 U.S. 407, 416 (1984).              Moreover,

“‘an Act of Congress . . . is on a full parity with a treaty, and

. . . when a statute which is subsequent in time is inconsistent

with a treaty, the statute to the extent of conflict renders the

treaty    null.’”      Breard     v.   Greene,       523   U.S.   371,   376    (1998)

(citation    omitted).       To   the       extent   that   the   illegal      reentry

statute, 8 U.S.C. § 1326, has been amended multiple times since the

1968 Protocol, Castro has no legal foundation for arguing that the

Protocol and Convention trump the statute of conviction.                       See id.

at 375.    Castro has not established plain error.

     The district court’s judgment is AFFIRMED.




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