United States v. Cuellar-Ramirez

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-40753 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

FRUCTOSO CUELLAR-RAMIREZ,

Defendant-Appellant.

- - - - - - - - - - Appeal from the United States District Court for the Southern District of Texas USDC No. L-00-CR-197-1 - - - - - - - - - - April 12, 2001

Before JOLLY, HIGGINBOTHAM, and JONES, Circuit Judges.

PER CURIAM:*

Fructoso Cuellar-Ramirez (Cuellar) appeals his guilty plea

conviction and sentence for being an alien illegally in the

United States following a prior deportation. See 8 U.S.C.

§ 1326. Cuellar argues that (1) the indictment was defective

because it did not allege a general intent mens rea; (2) in light

of Apprendi v. New Jersey, 120 S. Ct. 2438 (2000), his prior

felony conviction was an element of the offense under 8 U.S.C.

§ 1326(b) and should have been alleged in the indictment; and

(3) his prior conviction for possession of cocaine does not

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 00-40753 -2-

constitute a “drug trafficking” crime; therefore, it is not an

aggravated felony for purposes of sentencing.

All of Cuellar’s claims are foreclosed by controlling Fifth

Circuit precedent. See United States v. Guzman-Ocampo, 236 F.3d

233, 237-39 (5th Cir. 2000)(upholding sufficiency of indictment

for illegal reentry that contained substantially identical

language as Cuellar’s indictment); United States v. Dabeit, 231

F.3d 979, 984 (5th Cir. 2000)(explaining that despite Apprendi

prior aggravated felony is still a sentencing factor and not an

element of the offense of illegal reentry), cert denied, 121 S.

Ct. 1214 (2001); United States v. Hinojoso-Lopez, 130 F.3d 691,

692-93 (5th Cir. 1997)(holding that state felony possession of

controlled substance fits statutory definition of “drug

trafficking” crime and qualifies as aggravated felony).

Accordingly, Cuellar’s conviction and sentence are AFFIRMED.