                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                     September 1, 2006
                                   TENTH CIRCUIT                    Elisabeth A. Shumaker
                                                                        Clerk of Court



U N ITED STA TES O F A M ER ICA,

          Plaintiff-Appellee,
                                                          No. 05-2275
v.                                                 (District of New M exico)
                                                   (D.C. No. CR -05-446 JP)
A LEJA ND RO TA PIA -LEO N ,

          Defendant-Appellant.




                                OR D ER AND JUDGM ENT *


Before M U RPH Y, SE YM OU R, and M cCO NNELL, Circuit Judges.


      After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). This case is, therefore,

ordered submitted without oral argument.

      Defendant-Appellant Alejandro Tapia-Leon pleaded guilty in the United

States District Court for the District of New M exico to illegal reentry by a




      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
deported alien after conviction of an aggravated felony, in violation of 8 U.S.C. §

1326(a)(1), (a)(2), and (b)(2). The district court sentenced Tapia-Leon to seventy

months’ imprisonment, based in part on a sixteen-level enhancement for prior

deportation after a conviction for a felony alien smuggling offense. Tapia-Leon

appeals the application of the enhancement in calculating his sentence. W e assert

jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), and affirm.

      After Tapia-Leon entered a plea of guilty, the United States Probation

Office prepared a Presentence Investigation Report (“PSR”) based on the 2004

edition of the United States Sentencing Guidelines (“USSG” or “Guidelines”).

Tapia-Leon’s base offense level was eight. The PSR indicated Tapia-Leon was

previously deported after being convicted in the United States District Court for

the Southern D istrict of Illinois of nine counts of illegal transportation of aliens,

in violation of 8 U.S.C. § 1324(a)(1)(A)(ii). Based on these prior convictions, the

PSR recommended a sixteen-level enhancement for prior deportation after a

conviction for a felony alien smuggling offense. See USSG § 2L1.2(b)(1)(A)(vii).

The PSR also recommended a three-level downward adjustment for acceptance of

responsibility, bringing Tapia-Leon’s adjusted offense level to tw enty-one.

Tapia-Leon’s criminal history category was V, resulting in a Guidelines range of

seventy to eighty-seven months.

      Tapia-Leon requested that the district court impose a sentence below the

range set out in the PSR. He acknowledged the term “alien smuggling offense,”

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as defined in the 2004 edition of the Guidelines, includes convictions for illegal

transportation of aliens, in violation of 8 U.S.C. § 1324(a)(1)(A)(ii). He noted,

however, that this court defined “alien smuggling offense” under a former version

of the Guidelines to require “clandestine movement or concealment of aliens.”

See United States v. M artinez-Candejas, 347 F.3d 853, 855–57 (10th Cir. 2003)

(discussing 2002 edition of the Guidelines, which required a sixteen-level

enhancem ent for prior deportation after conviction for an alien smuggling offense

comm itted for profit and did not explicitly define the term “alien smuggling

offense”). Tapia-Leon argued the facts underlying his Illinois convictions did not

include any clandestine movement or concealment. Instead, according to Tapia-

Leon, he merely accepted a ride in a vehicle containing other aliens and drove the

vehicle when the original driver became tired. Thus, Tapia-Leon argued, his

offense was more akin to alien transportation than alien smuggling and was not

the type of conduct the enhancement was meant to deter. Tapia-Leon urged the

district court to take the circumstances of his prior convictions into consideration

when exercising its discretion under United States v. Booker, 543 U.S. 220

(2005), and applying the factors in 18 U.S.C. § 3553(a) to arrive at an appropriate

sentence.

      The district court adopted the recommendations contained in the PSR at

sentencing. In particular, it applied the sixteen-level enhancement for prior

deportation after a conviction for a felony alien smuggling offense. The district

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court also considered the § 3553(a) factors and determined “there are no factors in

this case that should take it outside of the guideline range.” The district court

therefore sentenced Tapia-Leon to a term of seventy months’ imprisonment, the

bottom of the applicable Guidelines range.

      Tapia-Leon’s appeal challenges the district court’s application of the

sixteen-level enhancement for prior deportation after a conviction for a felony

alien smuggling offense. Tapia-Leon asserts he contested the factual basis for the

enhancement in his objections to the PSR. Specifically, according to Tapia-Leon,

he argued his prior Illinois convictions for illegal transportation of aliens were

not alien smuggling offenses because they did not involve clandestine movement

or concealment. Tapia-Leon notes when a defendant objects to a fact in the PSR,

the government is required to prove that fact at the sentencing hearing by a

preponderance of the evidence. See United States v. Keifer, 198 F.3d 798, 800

(10th Cir. 1999). Because the government did not present any evidence

demonstrating his alien smuggling convictions involved clandestine movement or

concealment, Tapia-Leon argues the case should be remanded for resentencing.

      Tapia-Leon mischaracterizes the nature of the objections he made to the

PSR in district court. Tapia-Leon did not contest the factual basis for the sixteen-

level enhancement. At sentencing, Tapia-Leon indicated the facts stated in the

PSR were not in dispute and there was no need for an evidentiary hearing.

Instead, Tapia-Leon asked the district court to exercise its discretion to impose a

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sentence below the applicable Guidelines range because his prior convictions for

illegal transportation of aliens were less serious than the offenses the

enhancement was allegedly designed to deter. Because Tapia-Leon did not object

to any facts contained in the PSR, the district court was permitted to rely on those

facts to support the enhancement. See Keifer, 198 F.3d at 800.

      Even if Tapia-Leon’s argument below could be construed as an objection to

the factual basis for the sixteen-level enhancement, the government was not

required to prove, and the district court was not required to find by a

preponderance of the evidence, that Tapia-Leon’s illegal transportation of aliens

convictions involved clandestine movement or concealment. Tapia-Leon pleaded

guilty to illegal reentry by a deported alien after conviction of an aggravated

felony. A defendant convicted of illegal reentry is subject to a sixteen-level

enhancement under USSG § 2L1.2(b)(1)(A)(vii) if he was previously deported, or

unlawfully remained in the United States, after a conviction for a felony alien

smuggling offense. The commentary to § 2L1.2 states that the term “‘alien

smuggling offense’ has the meaning given that term in section 101(a)(43)(N) of

the Im migration and N ationality Act (8 U.S.C. § 1101(a)(43)(N)).” USSG §

2L1.2 app. n.1(B)(I). Section 101(a)(43)(N ) of the Immigration and Nationality

Act in turn applies to

      an offense described in paragraph (1)(A) or (2) of section 1324(a) of
      this title (relating to alien smuggling), except in the case of a first
      offense for which the alien has affirmatively shown that the alien

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      committed the offense for the purpose of assisting, abetting, or aiding
      only the alien’s spouse, child, or parent (and no other individual) to
      violate a provision of this chapter.

8 U.S.C. § 1101(a)(43)(N ). The sixteen-level enhancement therefore is applicable

to any defendant previously deported after a conviction under 8 U.S.C. §

1324(a)(1)(A) or (2), unless that conviction was the defendant’s first alien

smuggling offense and involved only the defendant’s immediate family members.

      Tapia-Leon was previously deported after conviction in Illinois on nine

counts of illegal transportation of aliens, in violation of 8 U.S.C. §

1324(a)(1)(A )(ii). Although Tapia-Leon asserts he objected to the factual basis

underlying these convictions, his objection related only to whether his conduct

involved clandestine movement or concealment. He did not claim, nor does he

claim on appeal, that the conduct underlying his convictions was for the purpose

of assisting only his immediate family members. Tapia-Leon’s convictions for

illegal transportation of aliens therefore qualify as alien smuggling offenses under

USSG § 2L1.2(b)(1)(A)(vii), and the district court did not err in applying the

sixteen-level enhancement.




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For the foregoing reasons, Tapia-Leon’s sentence is AFFIRM ED.

                              ENTERED FOR THE COURT



                              M ichael R. M urphy
                              Circuit Judge




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