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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 02-40827
Summary Calendar

UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE SANCHEZ-GARCIA,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
--------------------
January 24, 2003
Before JOLLY, HIGGINBOTHAM and DAVIS, Circuit Judges.
PER CURIAM:
Jose Sanchez-Garcia (Sanchez) appeals the sentence following
his guilty-plea conviction for being found in the United States
after a prior deportation, in violation of 8 U.S.C. з 1326(a) and
(b). He argues that the district court erred in going beyond the
statute of conviction and the charging instrument to determine
that a 16-level increase in his offense level was warranted under
U.S.S.G. з 2L1.2(b)(1)(A)(vii). He contends that the reasoning
from our decisions interpreting the "career offender" guidelines,
U.S.S.G. зз 4B1.1 and 4B1.2, should be applied, which limit
consideration to the conduct charged in the indictment, rather

No. 02-40827
-2-
than the underlying conduct of the offense. See, 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).
Our holdings in Gaitan and Fitzhugh were based on specific
language contained in the commentary to U.S.S.G. з 4B1.2,
limiting the sentencing court's inquiry to the conduct alleged in
the indictment in determining whether the enhancement applies.
Neither U.S.S.G. з 2L1.2 nor its commentary contains such
limiting language. Furthermore, U.S.S.G. з 1B1.3 instructs that
when determining the defendant's "specific offense
characteristics" under Chapter Two of the Guidelines, "[c]onduct
that is not formally charged or is not an element of the offense
of conviction may enter into the determination of the applicable
guideline sentencing range." U.S.S.G. з 1B1.3, comment.
(backg'd). We conclude, therefore, that the district court did
not misapply U.S.S.G. з 2L1.2(b)(1)(A)(vii).
Sanchez also contends that the sentence-enhancing provisions
contained in 8 U.S.C. з 1326(b) are facially unconstitutional in
light of Apprendi v. New Jersey, 530 U.S. 466 (2000). Sanchez
acknowledges that his argument is foreclosed by Almendarez-Torres
v. United States, 523 U.S. 224 (1998), but seeks to preserve the
issue for further review. The judgment of the district court is
AFFIRMED.