United States v. Damian-Garcia

101 F. App'x 465

• Court: Court of Appeals for the Fifth Circuit
• Decided: June 24, 2004
• Docket: 03-41320
• Status: Unpublished

Opinion

PER CURIAM: *

Manuel Damian-Gareia pleaded guilty to one count of illegal reentry into the United States, and the district court sentenced him to 36 months in prison and a three-year term of supervised release. DamianGareia argues that the district court erred by characterizing his state felony conviction for simple possession of cocaine as an “aggravated felony” for purposes of U.S.S.G. § 2L1.2(b)(l)(C), when that same offense is punishable only as a misdemean- or under federal law. This issue, however, is foreclosed by our precedent. See United States v. Caicedo-Cuero, 312 F.3d 697, 706-11 (5th Cir.2002), cert. denied, 538 U.S. 1021, 123 S.Ct. 1948, 155 L.Ed.2d 864 (2003); United States v. Hinojosa-Lopez, 130 F.3d 691, 693-94 (5th Cir.1997). Damian-Garcia has not shown that the district court erred by characterizing his state conviction as an aggravated felony for U.S.S.G. § 2L1.2(b)(l)(C) purposes and by sentencing him accordingly.

Damian-Gareia argues that 8 U.S.C. § 1326(b) is unconstitutional on its face and as applied in his case because it does not require the fact of a prior felony or aggravated felony conviction to be charged in the indictment and proved beyond a reasonable doubt. This argument is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). See United States v. Dabeit, 231 F.3d 979, 984 (5th Cir.2000).

Damian-Gareia has shown no error in the district court’s judgment. Accordingly, that judgment is AFFIRMED.

* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.