                                                           United States Court of Appeals
                                                                    Fifth Circuit
                                                                 F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                     June 4, 2003

                                                             Charles R. Fulbruge III
                                                                     Clerk
                              No. 02-41580
                            Summary Calendar


                        UNITED STATES OF AMERICA,
                                                    Plaintiff-Appellee,

                                  versus

                        IGNACIO GARCIA-HERNANDEZ,

                                                    Defendant-Appellant.

                         --------------------
             Appeal from the United States District Court
                  for the Southern District of Texas
                        USDC No. M-02-CR-395-1
                         --------------------

Before JONES, STEWART and DENNIS, Circuit Judges.

PER CURIAM:*

          Ignacio Garcia-Hernandez (“Garcia”) pleaded guilty to

illegal reentry into the United States after having been deported,

a violation of 8 U.S.C. § 1326, and was sentenced to 37 months in

prison and three years of supervised release.        He now appeals his

conviction and sentence.

          Garcia argues that the district court erred in imposing

a 16-level offense-level increase based on his prior aggravated-

assault conviction, for which he had been sentenced to 10 years of

probation,     under   U.S.S.G.   §   2L1.2(b)(1)(A)(ii)   (Nov.    2001).

     *
      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this opinion should not be published and is not precedent except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.
                                  No. 02-41580
                                       -2-

Acknowledging      that   the    16-level    increase      was    warranted   under

the “literal terms” of the guideline, he suggests that, in amending

§   2L1.2,   the   Sentencing      Commission      could    not    have    intended

that a prior offense that did not even qualify as an “aggravated

felony”--i.e., a felony for which the defendant had been sentenced

to one year or more in prison--receive the full 16-level increase.

Interpretation of the Sentencing Guidelines is subject to ordinary

rules of statutory construction, and if the guideline’s language is

unambiguous, our inquiry begins and ends with an analysis of the

plain meaning of that language.              United States v. Carbajal, 290

F.3d 277, 283 (5th Cir.), cert. denied, 123 S. Ct. 34 (2002).                      The

only exception to this rule is when a clear contrary legislative

intention is shown, an exception that applies only in “rare and

exceptional circumstances.”            See Ardestani v. INS, 502 U.S. 129,

135-36 (1991).        Garcia has not established that the commentary to

and history of the amended § 2L1.2 establish that the Commission

did   not    intend    that     some   offenses    that     do    not    qualify    as

“aggravated     felonies”       within     the    meaning    of    the    guideline

nonetheless warrant the guideline’s top offense-level increase.

             Garcia     also    contends    that    8    U.S.C.    §     1326(b)    is

unconstitutional on its face under Apprendi v. New Jersey, 530 U.S.

466 (2000), in that the felony “element” of the offense need not be

submitted to the factfinder for proof.                  As Garcia concedes, his

contention regarding Apprendi is foreclosed by the caselaw of this

court and by Apprendi itself.              See United States v. Dabeit, 231
                           No. 02-41580
                                -3-

F.3d 979, 984 (5th Cir. 2000) (noting that the Supreme Court in

Apprendi, 530 U.S. at 489-90, expressly declined to overrule the

controlling   Almendarez-Torres   v.   United   States,   523   U.S.   224

(1998)). Garcia raises this issue to preserve it for review by the

Supreme Court.

          Garcia’s conviction and sentence are AFFIRMED.
