United States v. Gonzalez-Jimenez

105 F. App'x 637

Opinion

United States Court of Appeals Fifth Circuit

FILED IN THE UNITED STATES COURT OF APPEALS August 18, 2004 FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk

No. 03-41694 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JAIME GONZALEZ-JIMENEZ,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. L-03-CR-1080-ALL --------------------

Before HIGGINBOTHAM, DAVIS, and PICKERING, Circuit Judges.

PER CURIAM:*

Jaime Gonzalez-Jimenez pleaded guilty to one count of

illegal reentry into the United States following deportation, and

the district court sentenced him to 34 months in prison and a

three-year term of supervised release. Gonzalez-Jimenez 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)(1)(C), when that same

offense is punishable only as a misdemeanor under federal law.

This issue, however, is foreclosed by our precedent. See United

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 03-41694 -2-

States v. Caicedo-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). Gonzalez-Jimenez

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)(1)(C) purposes and by sentencing him accordingly.

Gonzalez-Jimenez 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).

Gonzalez-Jimenez has shown no error in the district court’s

judgment. Accordingly, that judgment is AFFIRMED.