United States v. Aguilar-Juarez

72 F. App'x 963

Opinion

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT August 20, 2003

Charles R. Fulbruge III Clerk No. 03-40013 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ALBERTO AGUILAR-JUAREZ,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. M-02-CR-559-1 --------------------

Before JONES, WIENER, and BENAVIDES, Circuit Judges.

PER CURIAM:*

Alberto Aguilar-Juarez appeals his guilty-plea conviction

and sentence for being found in the United States, without

permission, following deportation, in violation of 8 U.S.C.

§ 1326. Aguilar-Juarez concedes that both of his appellate

arguments are foreclosed. He raises the issues to preserve them

for further review.

Aguilar-Juarez argues that the district court erred in

determining that his prior state felony convictions for

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 03-40013 -2-

possession of marijuana were “drug trafficking crimes” under

8 U.S.C. § 1101(a)(43)(B) and thus “aggravated felonies” which

warranted an eight-level increase in his base offense level

under U.S.S.G. § 2L1.2(b)(1)(C)(2002) and 8 U.S.C. § 1326(b)(2).

Aguilar-Juarez’s argument regarding the definitions of “drug

trafficking crimes” and “aggravated felonies” is foreclosed by

United States v. Caicedo-Cuero, 312 F.3d 697, 706-11 (5th Cir.

2002), cert. denied, 123 S. Ct. 1948 (2003). The district court

did not err in sentencing Aguilar-Juarez under U.S.S.G.

§ 2L1.2(b)(1)(C)(2002) and 8 U.S.C. § 1326(b)(2).

Aguilar-Juarez also argues that 8 U.S.C. § 1326(b) is

unconstitutional because it treats a prior conviction for a

felony or aggravated felony as a sentencing factor and not as an

element of the offense. Aguilar-Juarez’s argument is foreclosed

by Almendarez-Torres v. United States, 523 U.S. 224, 235, 239-47

(1998). Apprendi v. New Jersey, 530 U.S. 466, 489-90 (2000),

did not overrule that decision. See United States v. Dabeit,

231 F.3d 979, 984 (5th Cir. 2000). Thus, the district court did

not err in sentencing Aguilar-Juarez under 8 U.S.C. § 1326(b).

The Government has moved for a summary affirmance in lieu of

filing an appellee’s brief. The Government asks that an

appellee’s brief not be required. The motion is GRANTED.

The judgment of the district court is AFFIRMED.

AFFIRMED; MOTION GRANTED.