United States v. Belalcazar-Solarte

Opinion

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS April 24, 2003

FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk

No. 02-20915 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

MARINO BELALCAZAR-SOLARTE,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. H-02-CR-48-ALL --------------------

Before DAVIS, BARKSDALE, and STEWART, Circuit Judges.

PER CURIAM:*

Marino Belalcazar-Solarte (“Belalcazar”) appeals the

41-month sentence imposed following his plea of guilty to a

charge of being found in the United States after deportation, a

violation of 8 U.S.C. § 1326. Finding no error, we affirm the

district court’s judgment.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 02-20915 -2-

Belalcazar contends that his prior state felony conviction

for possession of a controlled substance is not an “aggravated

felony” for purposes of U.S.S.G. § 2L1.2(b)(1)(C) and 8 U.S.C.

§ 1101(a)(43)(B). He concedes that his argument is foreclosed by

this court’s decision in United States v. Caicedo-Cuero, 312 F.3d

697, 706-11 (5th Cir. 2002) (holding that possession of a

controlled substance is an “aggravated felony” for purposes of

8 U.S.C. § 1326(b)(2) and U.S.S.G. § 2L1.2 (2001)), petition for

cert. filed, (U.S. Mar. 19, 2003) (No. 02-9747), and raises the

issue only to preserve it for possible Supreme Court review.

Belalcazar also argues that the felony conviction that

resulted in his increased sentence under 8 U.S.C. § 1326(b)(2)

was an element of the offense that should have been charged in

the indictment. He acknowledges that his argument is foreclosed

by the Supreme Court’s decision in Almendarez-Torres v. United

States, 523 U.S. 224 (1998), but he seeks to preserve the issue

for Supreme Court review in light of the decision in Apprendi

v. New Jersey, 530 U.S. 466 (2000). Apprendi did not overrule

Almendarez-Torres. See Apprendi, 530 U.S. at 490; United States

v. Dabeit, 231 F.3d 979, 984 (5th Cir. 2000). Belalcazar’s

argument is foreclosed.

AFFIRMED.