United States v. Garcia-Ramirez

110 F. App'x 447

Opinion

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT October 21, 2004

Charles R. Fulbruge III Clerk No. 04-40015 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee, versus

JOSE CONCEPCION GARCIA-RAMIREZ,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. 5:03-CR-249-ALL --------------------

Before JOLLY, JONES, and WIENER, Circuit Judges.

PER CURIAM:*

Jose Concepcion Garcia-Ramirez (Garcia) pleaded guilty to

one count of illegal reentry into the United States. The

district court sentenced him to 24 months in prison and a three-

year term of supervised release. Garcia argues that the district

court erred by characterizing his state felony conviction for

possession of a controlled substance as an aggravated felony for

purposes of U.S.S.G. § 2L1.2(b)(1)(C), because that same offense

is punishable only as a misdemeanor under federal law. This

issue, however, is foreclosed. See United States v. Caicedo-

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 04-40015 -2-

Cuero, 312 F.3d 697, 706-11 (5th Cir. 2002), cert. denied, 538

U.S. 1021 (2003); United States v. Hinojosa-Lopez, 130 F.3d 691,

693-94 (5th Cir. 1997). Thus, Garcia fails to show that the

district court erred by characterizing his state conviction as an

aggravated felony for U.S.S.G. § 2L1.2(b)(1)(C) purposes and by

sentencing him accordingly.

Garcia 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 (1998). See United States v. Dabeit, 231

F.3d 979, 984 (5th Cir. 2000). Garcia’s conviction and sentence

are AFFIRMED.

The parties agree, and the record reflects, that the

indictment against Garcia charged him with attempted illegal

reentry into the United States after deportation and that he

pleaded guilty to that charge but that the judgment states that

Garcia was convicted of reentry of a deported alien. The case is

REMANDED for the limited purpose of correcting the judgment to

reflect that Garcia was convicted of attempted illegal reentry.

See FED. R. CRIM. P. 36; see United States v. Powell, 354 F.3d

362, 371-72 (5th Cir. 2003).

CONVICTION AND SENTENCE AFFIRMED; REMANDED FOR CORRECTION OF

CLERICAL ERROR IN JUDGMENT.