United States v. Lopez-Tovar

115 F. App'x 236

Opinion

PER CURIAM:

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Jose Luis Lopez-Tovar (Lopez) pleaded guilty and was convicted of illegal reentry after deportation. He was sentenced to 30 months of imprisonment and three years of supervised release. Lopez contends that the district court erred by characterizing his state felony conviction for possession of marijuana as an “aggravated felony” for purposes of U.S.S.G. § 2L1.2. This issue, however, is foreclosed by our precedent. See United States v. Caicedo-Cuero, 312 F.3d 697, 700-06 (5th Cir.2002); United States v. Hinojosa-Lopez, 130 F.3d 691, 693-94 (5th Cir.1997).

Lopez also argues that the “felony” and “aggravated felony” provisions of 8 U.S.C. § 1326(a) and (b) are unconstitutional. He acknowledges that his argument is foreclosed, but he seeks to preserve the issue for possible Supreme Court review in light of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). As Lopez concedes, this issue is foreclosed. See Almendarez-Torres v. United States, 523 U.S. 224, 247, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998); United States v. Dabeit, 231 F.3d 979, 984 (5th Cir.2000).

Lopez further argues that the Supreme Court’s holding in Blakely v. Washington, — U.S.-, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), should be applied to sentences determined under the United States Sentencing Guidelines. As Lopez concedes, this argument is foreclosed by this court’s recent opinion in United States v. Pineiro, 377 F.3d 464, 465-73 (5th Cir.2004), petition for cert. filed (U.S. July 14, 2004) (No. 04-5263), but he raises it to preserve it for possible further review.

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Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.