United States v. Leal-Rivera

* 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this opinion should not be published and is not precedent except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.
United States Court of Appeals
Fifth Circuit
F I L E D
October 25, 2006
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 06-40014
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CESAR ARMANDO LEAL-RIVERA,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:02-CR-154
--------------------
Before JOLLY, DeMOSS, and STEWART, Circuit Judges.
PER CURIAM:*
Cesar Armando Leal-Rivera pleaded guilty to illegal reentry
and was sentenced to 28 months of imprisonment to be followed by
a two-year term of supervised release. He now appeals the 24-
month sentence imposed following the revocation of his term of
supervised release.
Leal argues that the district court imposed a sentence above
the statutory maximum. He contends that the top of the
sentencing guidelines range found applicable by the district
court, rather than the statutory maximum under 8 U.S.C.

-- 1 of 2 --

No. 06-40014
-2-
§ 1326(b), governs the classification of his underlying felony
for purposes of revocation of supervised release.
In United States v. Alfaro-Hernandez, 453 F.3d 280, 281-82
(5th Cir. 2006), the court held that, in determining the
statutory maximum penalty that can be imposed upon revocation of
supervised release, the felony classification of the defendant’s
underlying offense was to be determined by statute and not by the
Sentencing Guidelines. Leal acknowledges that his argument is
foreclosed by Alfaro-Hernandez, but he wishes to preserve the
argument for possible further Supreme Court review.
The sentence is AFFIRMED.

-- 2 of 2 --