United States v. Cruz-Resendiz

Opinion

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS April 17, 2003 FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk

No. 02-20971 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

DOMINGO OSCAR CRUZ-RESENDIZ,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. H-02-CR-62-1 --------------------

Before BARKSDALE, DeMOSS, and BENAVIDES, Circuit Judges.

PER CURIAM:*

Domingo Oscar Cruz-Resendiz (“Cruz-Resendiz”) appeals his

conviction and 30-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.

Cruz-Resendiz 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.

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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

issue only to preserve it for possible Supreme Court review.

Cruz-Resendiz 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 the 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 489-90; see also United States v. Dabeit, 231 F.3d 979,

984 (5th Cir. 2000). Cruz-Resendiz’s argument is foreclosed. The

judgment of the district court is AFFIRMED.