United States v. Beltran-Del Moro

Opinion

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS April 23, 2003 FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk

No. 02-51002 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

GUSTAVO BELTRAN-DEL MORO, also known as Rigoberto Del Moro,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Western District of Texas USDC No. EP-02-CR-896-ALL-PRM --------------------

Before DAVIS, BARKSDALE, and STEWART, Circuit Judges.

PER CURIAM:*

Gustavo Beltran-Del Moro appeals his guilty plea conviction

and sentence for being found in the United States after

deportation/removal in violation of 8 U.S.C. § 1326. He contends

that the district court erred in determining that his prior state

felony conviction for possession of cocaine was a “drug

trafficking” crime and thus an “aggravated felony” which

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 02-51002 -2-

warranted an eight-level increase in his base offense level under

U.S.S.G. § 2L1.2(b)(1)(C)(2001).

Beltran-Del Moro’s argument is foreclosed by United States

v. Caicedo-Cuero, 312 F.3d 697, 706-11 (5th Cir. 2002), petition

for cert. filed, (U.S. March 19, 2003)(No. 02-9747), which held

that simple possession of a controlled substance is a drug

trafficking crime for purposes of the aggravated felony

enhancement in U.S.S.G. § 2L1.2(b)(1)(C)(2001). Because Beltran-

Del Moro’s argument is foreclosed, the Government has moved for a

summary affirmance. It asks that an appellee’s brief not be

required. The motion is GRANTED. The judgment of the district

court is AFFIRMED.

MOTION GRANTED; AFFIRMED.