                    UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT
                          ____________________

                               02-40213
                         ____________________

                      UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee,

                                versus

                        JESUS ARIAS-DOMINGUEZ,

                                             Defendant-Appellant.
_________________________________________________________________

           Appeal from the United States District Court
                for the Southern District of Texas
                         (L-01-CR-994-ALL)
_________________________________________________________________
                         November 12, 2002
Before DAVIS and BARKSDALE, Circuit Judges, and AFRICK, District
Judge*.

PER CURIAM:**

     This appeal challenges an enhanced sentence imposed under the

2001 amendment to Sentencing Guidelines § 2L1.2(b)(1)(A)(vii) (16-

level enhancement to offense level if defendant previously deported

for alien smuggling for profit). Primarily at issue is whether, in

enhancing   Jesus   Arias-Dominguez’s    (Arias)   sentence   under   the

Guideline, the district court committed reversible plain error by




     *
      District Judge of the Eastern District of Louisiana, sitting
by designation.
     **
      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this opinion should not be published and is not precedent except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.
concluding   that   Arias’   prior    conviction       was    for   an   offense

committed for profit.     AFFIRMED.

                                     I.

     In August 2001, Arias pleaded guilty to one count of illegally

reentering the United States subsequent to deportation following a

conviction for an aggravated felony, in violation of 8 U.S.C. §

1326(a), (b)(2). In January 2002, he was sentenced, inter alia, to

41   months’    imprisonment.              Pursuant     to      Guidelines     §

2L1.2(b)(1)(A)(vii), as amended in November 2001, the district

court increased Arias’ offense level by 16 due to his having been

earlier deported (in 1999) for transporting aliens in violation of

8 U.S.C. 1324(a)(1)(A)(ii).

     As discussed infra, in dispute is whether the record at the

sentencing hearing showed that the earlier transporting offense was

committed for profit. In any event, the district court adopted the

recommendation in the Presentence Investigation Report (instant

PSR) that the 16-level increase be imposed.                  As also discussed

infra, the instant PSR did not state that the prior offense was

committed for profit.

                                     II.

     Arias   challenges   only   his       sentence.     First,     he   claims

reversible error because the enhancement was imposed in the absence

of evidence that his prior transporting offense was committed for

profit.   Second, he belatedly contends (in his reply brief) that


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transporting aliens is not an “alien smuggling offense” under the

Guidelines.   Usually, when a sentence is challenged on appeal, the

district court’s findings of fact are reviewed only for clear

error; its application of the guidelines, de novo.            E.g., United

States v. Cervantes-Nava, 281 F.3d 501, 506 (5th Cir.), cert.

denied, 122 S. Ct. 2379 (2002).    Here, however, as discussed below,

we review the first — “for-profit” — issue under the far more

restrictive plain error standard.       We decline to reach the second

—   “alien smuggling” — issue.

                                   A.

      Guidelines   §   2L1.2(b)(1)(A)(vii)   provides   for    a   16-level

enhancement for a prior alien smuggling offense only when it was

committed “for profit” –       “payment or expectation of payment”.

U.S.S.G. § 2L1.2, cmt. n.1(B)(i)(2001).        Arias raises the “for-

profit” issue for the first time on appeal.

      The district court ruled that Arias was subject to the 16-

level enhancement based upon the instant PSR’s recommendation.

Arias made no “not-for-profit” objection to the portion of the PSR

recommending the 16-level enhancement; nor did he object to the

Government’s statement during the sentencing hearing that the prior

offense was committed for profit.

      Accordingly, we review only for plain error.             See, e.g.,

United States v. Meshack, 225 F.3d 556, 575 (5th Cir. 2000), cert.

denied, 531 U.S. 1100 (2001).     Arias must show a clear or obvious


                                   3
error that affects his substantial rights.     E.g., United States v.

Franks, 46 F.3d 402, 404 (5th Cir. 1995).     Even if he does so, we

have discretion whether to correct the plain error; generally, it

will not be corrected unless it “‘seriously affect[s] the fairness,

integrity or public reputation of judicial proceedings’”.       Id. at

404 (emphasis added; quoting United States v. Olano, 507 U.S. 725,

736 (1993)).

     Arias contends that the district court had no evidence before

it concerning the for-profit nature of his prior conviction.

Relevant to this contention is the fact that the sentencing hearing

on 18 January 2002 also involved revocation of Arias’ supervised

release from his prior conviction.      (For the latter, the district

court   imposed   three   months’   imprisonment.)    The   Government

maintains that, for the revocation, the district court had before

it Arias’ PSR for his prior, transporting conviction (earlier PSR).

     That earlier PSR states that the transporting offense was

committed for profit.     Arias counters that, as reflected in the

docket sheet for the revocation, only three items from the prior

conviction were before the district judge — the docket sheet,

indictment, and judgment.    They do not show the prior offense was

committed for profit. Moreover, as noted, Arias had been convicted

under 8 U.S.C. § 1324 (a)(1)(A)(ii); he was not convicted of

transporting aliens “for the purpose of ... financial gain”, as he

could have been under 8 U.S.C. § 1324 (a)(1)(B)(i).


                                    4
     In short, we do not know whether the earlier PSR was before

the district judge.     The Government’s motion to supplement the

record on appeal with both the record and PSR from the prior

conviction is GRANTED for our use in reviewing for plain error.

     As noted, during the sentencing hearing, when the Government

stated that, for the prior conviction, Arias had transported aliens

for profit, Arias did not object.    Nevertheless, Arias contends

that the Government’s unsworn assertion of facts does not meet its

burden of establishing that the prior offense was committed for

profit.   See United States v. Patterson, 962 F.2d 409, 415 (5th

Cir. 1992).

     Arias fails, however, to factor in our extremely limited

standard of review for this issue — plain error.   Again, when the

Government made that statement, Arias did not object.     Based on

this record, including the description in the instant PSR of the

facts surrounding the prior conviction (including that Arias had

guided a group of aliens into, and was traveling with them in, the

United States), the enhancement does not constitute error that was

“clear” or “obvious”.

     In any event, even if there were clear or obvious error that

affected Arias’ rights, we would decline, in our discretion, to

hold there was reversible error because, in the light of both the

record and PSR for the prior conviction, the transporting offense

was “for profit”.     Therefore, upholding the sentence does not


                                 5
“seriously affect the fairness, integrity or public reputation of

judicial proceedings”.

      Arias     also    insists    the   underlying        facts     of    his   prior

conviction may not be used by the district court when determining

the applicability of § 2L1.2(b)(1)(A)(vii).                 He notes that, with

regard to enhancements pursuant to Guidelines § 4B1.2 (concerning

career offenders), a sentencing court’s inquiry is limited to the

conduct alleged in the prior indictment.             United States v. Gaitan,

954 F.2d 1005, 1009-11 (5th Cir. 1992); United States v. Fitzhugh,

954 F.2d 253, 254-55 (5th Cir. 1992), cert. denied, 510 U.S. 895

(1993).   Importantly, however, the commentary to § 4B1.2 imposed

such a limitation; there is none in § 2L1.2.                See Gaitan, 954 F.2d

at 1009-11; Fitzhugh, 954 F.2d at 254-55.

      Arias also relies on United States v. Zavala-Sustaita, 214

F.3d 601 (5th Cir.), cert. denied, 531 U.S. 982 (2000).                     At issue

was   whether    a     violation   of    a   state   statute        constituted    an

“aggravated      felony”    for    the   purposes     of     §     2L1.2    (pre-2001

amendment).      Our court held:         “In making this determination, we

employ a categorical approach, considering whether the elements of

[the] offense describe ‘sexual abuse of a minor’ rather than

whether [defendant’s] specific conduct constituted ‘sexual abuse of

a minor’”.      214 F.3d at 603 (emphasis added).

      Again, we review only for plain error.                     The use of such

underlying facts for enhancement of the offense at hand has not

                                         6
been directly ruled on by our court.        Therefore, the enhancement

cannot constitute error that is “clear” or “obvious”.

                                   B.

     In district court, Arias claimed “transporting” aliens was not

“an alien smuggling offense” under § 2L1.2(b)(1)(a)(vii). Although

he makes that general claim in his opening brief here, he fails to

present the required reasons in support.            See FED. R. APP. P.

28(a)(9)(A). Instead, as noted, he waited until his reply brief to

do so.   Generally, we “will not consider a claim raised for the

first time in a reply brief”.     Yohey v. Collins, 985 F.2d 222, 225

(5th Cir. 1993).    We decline to consider this issue.

     We note, as held in United States v. Solis-Campozano, No. 02-

50799 (5th Cir. filed _____, 2002), that “transporting” does

constitute   “an   alien   smuggling    offense”   for   purposes   of   the

Guideline at issue.

                                 III.

     For the foregoing reasons, the judgment is

                                                             AFFIRMED.




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