Escarcega-Duran

MEMORANDUM *

Escarcega-Duran appeals the sentence imposed following his guilty plea to unlawful reentry of a deported alien, a violation of 8 U.S.C. § 1326 .

In 1999, Duran pled guilty to transporting an alien “for commercial advantage or private financial gain,” a violation of 8 U.S.C. § 1324 (a)(l)(A)(ii), (B)(i). At the time of sentencing for his subsequent 2002 illegal reentry conviction, Duran’s offense level was increased 16 levels, pursuant to U.S.S.G. § 2L1.2(b)(l)(A)(vii), based on this prior conviction for an “alien smuggling offense committed for profit.”

On appeal before this Court, Duran argues for the first time that his 1999 conviction for transporting an alien “for commercial advantage or private financial gain” does not qualify as an “alien smuggling offense committed for profit,” and accordingly, that the district court erred in applying the 16-level enhancement. 1 Duran also asserts that the enhancement of his sentence for illegal reentry based on a prior aggravated felony that was neither charged in the indictment nor admitted by him violates the Supreme Court’s decision in Apprendi v. New Jersey, 530 U.S. 466 , 120 S.Ct. 2348 , 147 L.Ed.2d 435 (2000). We…