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

                                                                 FILED
                                                              November 19, 2007

                               No. 06-10307               Charles R. Fulbruge III
                                                                  Clerk

UNITED STATES OF AMERICA

                                         Plaintiff-Appellee
v.

MARCO ANTONIO RABANAL, also known as Marco Rabanal-Gal

                                         Defendant-Appellant


                               No. 06-11281


UNITED STATES OF AMERICA

                                         Plaintiff-Appellee
v.

FRANCISCO VILLEGAS-JAIMES, also known as Francisco Peralta-Jaimes,
also known as Francisco Villegas-Pancho, also known as Ignacio Souliz, also
known as Pancho, also known as Jose Cruz Castillo, also known as Joe Cruz
Castillo-Guzman, also known as Jose CC Guzman

                                         Defendant-Appellant



               Appeals from the United States District Court
                    for the Northern District of Texas


Before REAVLEY, SMITH, and GARZA, Circuit Judges.
                                         No. 06-10307 and
                                          No. 06-11281

REAVLEY, Circuit Judge:
      Marco Antonio Rabanal and Francisco Villegas-Jaimes appeal from their
sentences in unrelated cases after pleading guilty to illegal reentry, in violation
of 8 U.S.C. § 1326. Both defendants received sentence enhancements pursuant
to U.S.S.G. § 2L1.2 because of prior convictions for alien smuggling offenses.
Because of a commonality in the defendants’ arguments, we sua sponte
consolidate the two appeals.1 Finding no error, we affirm both sentences.
      Rabanal pleaded guilty to illegal reentry after removal, in violation of
sections 1326(a) and (b)(2). His presentence report (“PSR”) applied a 16-level
upward adjustment under U.S.S.G. § 2L1.2(b)(A)(vii) because a prior conviction
for transporting aliens was an “alien smuggling offense” as defined in 8 U.S.C.
§ 1101(a)(43)(N). The PSR calculated a total offense level of 21, a criminal
history category of III, and a guideline range of 46-57 months. Although
Rabanal objected to the PSR, he did not object to the 16-level sentence
enhancement.         At the sentencing hearing, the Government moved for a
downward departure based on substantial assistance under § 5K1.1. The
district court overruled Rabanal’s objections, granted the Government’s request
for a downward departure, and sentenced Rabanal to 33 months in prison.
      Villegas also pleaded guilty to one count of illegal reentry after removal.
Noting that Villegas had a prior conviction for “Bringing Undocumented Aliens
Into the United States,” the PSR characterized this offense as an “alien
smuggling offense” and applied the 16-level enhancement of § 2L1.2(b)(1)(A)(vii).
After a three-level reduction for acceptance of responsibility, Villegas’s total
offense level was 21, his criminal history category was V, and the advisory
guidelines range was 70 to 87 months. Villegas did not object to the 16-level
enhancement. The district court sentenced him to 87 months in prison.


      1
          See FED. R. APP. P. 3(b)(2).

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                                       No. 06-10307 and
                                        No. 06-11281

      Both Rabanal and Villegas argue on appeal that they should not have
received sentence enhancements for prior alien smuggling offenses.            Both
contend that the Government failed to prove the necessary facts for the
enhancement as it is defined within the Guidelines.
      Section 2L1.2(b)(1)(A)(vii) of the Sentencing Guidelines provides for a
16-level enhancement to the base offense level when a defendant convicted of
illegal reentry was previously deported after “an alien smuggling offense.” The
guideline commentary provides that “‘[a]lien smuggling offense’ has the meaning
given that term in section 101(a)(43)(N) of the Immigration and Nationality Act
(8 U.S.C. § 1101(a)(43)(N)).”2            Section 1101(a)(43), in turn, defines an
“aggravated felony” to include “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
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.”3
      As noted above, Rabanal was previously convicted of transporting aliens
within the United States, and Villegas was previously convicted of bringing
undocumented aliens into the United States. Both offenses were in violation of
8 U.S.C. § 1324(a). The defendants’ respective PSRs characterized the prior
offenses as alien smuggling for purposes of § 2L1.2(b)(1)(A)(vii). The defendants
argue that the alien smuggling enhancements were erroneous because the
records in their cases are insufficient to show that their prior offenses involved




      2
          § 2L1.2, cmt. n.1(B)(i).
      3
          8 U.S.C. § 1101(a)(43)(N).

                                              3
                                        No. 06-10307 and
                                         No. 06-11281

aliens other than their spouses or relatives.4 The defendants argue that the
Government, as the proponent of the sentencing enhancement, has the burden
of identifying the aliens previously transported in order to prove the prior
convictions were for alien smuggling offenses. We disagree. The defendants
urge a defense to their convictions and not an open question at the stage of their
sentences.
       The general rule is that “the party seeking an adjustment in the sentence
level must establish the factual predicate justifying the adjustment.”5 The
factual predicate the Government must establish for a sentence enhancement
under § 2L1.2(b)(1)(A)(vii) and the cross-reference to § 1101(a)(43)(N) is a prior
conviction for an offense under 8 U.S.C. § 1324(a)(1)(A) or (2). The burden is on
the defendant to “affirmatively show[]” that the prior offense was a first offense
involving only qualifying family members.6
       The defendants argue that the Sentencing Commission did not intend to
incorporate § 1101(a)(43)(N)’s burden of proof into § 2L1.2(b)(1)(A)(vii). We
apply ordinary rules of statutory construction to the Sentencing Guidelines, and
if the language of the Guidelines is unambiguous the inquiry ends with the plain
meaning of that language.7 The plain meaning controls “unless it leads to an




       4
         Rabanal separately argues that the enhancement was erroneous because his prior
offense of transporting aliens within the United States was not related to alien smuggling
insofar as smuggling suggests transgression of an international border. Rabanal properly
concedes that his argument is foreclosed by circuit precedent, and he raises the issue only to
preserve it for possible further review. See United States v. Solis-Campozano, 312 F.3d 164,
167 (5th Cir. 2002) (holding that an “alien smuggling offense” includes transporting aliens
within the United States).
       5
           United States v. Alfaro, 919 F.2d 962, 965 (5th Cir. 1990).
       6
           8 U.S.C. § 1101(a)(43)(N).
       7
           United States v. Carbajal, 290 F.3d 277, 283 (5th Cir. 2002).

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                                   No. 06-10307 and
                                    No. 06-11281

absurd result.”8 Under the plain language of the guideline and the incorporated
statute, we see no absurd result in requiring the defendant to show that his prior
offense involved only qualifying family members in a first time offense to avoid
an otherwise valid sentencing enhancement.
      Rabanal and Villegas fail to show error because they do not show, or even
argue, that their prior offenses concerned only members of their families and
were first time offenses. Therefore, the district court did not erroneously apply
the sentence enhancement under § 2L1.2(b)(1)(A)(vii).
      AFFIRMED.




      8
          Solis-Campozano, 312 F.3d at 166.

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