     Case: 09-40956     Document: 00511149301          Page: 1    Date Filed: 06/22/2010




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                            June 22, 2010
                                     No. 09-40956
                                  Conference Calendar                       Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

DAVID INOCENCIO DEL CARMAN-GOMEZ,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Southern District of Texas
                              USDC No. 2:09-CR-392-1


Before JOLLY, STEWART, and OWEN, Circuit Judges.
PER CURIAM:*
        David Inocencio Del Carman-Gomez appeals his guilty plea conviction and
sentence for illegal reentry in violation of 8 U.S.C. § 1326. He contends that the
district court erroneously used his aggravated felony conviction to increase both
his base offense level and his criminal history score.               He also argues that
§ 1326(b) is unconstitutional in light of Apprendi v. New Jersey, 530 U.S. 466
(2000). Because Del Carman-Gomez did not raise these claims in the district



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
   Case: 09-40956   Document: 00511149301 Page: 2        Date Filed: 06/22/2010
                                No. 09-40956

court, plain error review applies. See Puckett v. United States, 129 S. Ct. 1423,
1429 (2009).
      Del Carman-Gomez’s double-counting argument is without merit because
the Guidelines specifically state that a conviction used to increase an offense
level may also be used in calculating a defendant’s criminal history score. See
U.S.S.G. § 2L1.2, comment. (n.6); see also United States v. Duarte, 569 F.3d 528,
529-31 (5th Cir.), cert. denied, 130 S. Ct. 378 (2009). His argument regarding the
constitutionality of § 1326 is foreclosed by Almendarez-Torres v. United States,
523 U.S. 224, 235 (1998). See United States v. Pineda-Arrellano, 492 F.3d 624,
625 (5th Cir. 2007). Therefore, Del Carman-Gomez has not shown error, plain
or otherwise. Accordingly, the district court’s judgment is AFFIRMED.




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