United States v. Mora-Garibay

72 F. App'x 234

• Court: Court of Appeals for the Fifth Circuit
• Decided: August 19, 2003
• Docket: 02-41140
• Status: Unpublished

Opinion

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT August 20, 2003

Charles R. Fulbruge III Clerk No. 02-41140 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ANTONIO MORA-GARIBAY,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. B-02-CR-243-ALL --------------------

Before JONES, WIENER, and BENAVIDES, Circuit Judges.

PER CURIAM:*

Antonio Mora-Garibay appeals his guilty-plea conviction and

sentence for being found in the United States, without

permission, following deportation, in violation of 8 U.S.C.

§ 1326. Mora-Garibay concedes that his appellate arguments are

foreclosed. He nevertheless raises two issues to preserve them

for possible en banc or Supreme Court review.

Mora-Garibay argues that the district court erred in

determining that his prior state felony conviction for possession

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 02-41140 -2-

of cocaine was a “drug trafficking crime” under 8 U.S.C.

§ 1101(a)(43)(B) and thus an “aggravated felony” which warranted

an eight-level increase in his base offense level under U.S.S.G.

§ 2L1.2(b)(1)(C)(2001) and 8 U.S.C. § 1326(b)(2). Mora-Garibay’s

argument regarding the definitions of “drug trafficking crime”

and “aggravated felony” is foreclosed by United States v.

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

denied, 123 S. Ct. 1948 (2003). The district court did not err

in sentencing Mora-Garibay under U.S.S.G. § 2L1.2(b)(1)(C)(2001)

and 8 U.S.C. § 1326(b)(2).

Mora-Garibay also argues, for the first time on appeal, that

8 U.S.C. § 1326(b) is unconstitutional because it treats a prior

conviction for a felony or aggravated felony as a sentencing

factor and not as an element of the offense. Mora-Garibay’s

argument is foreclosed by Almendarez-Torres v. United States, 523

U.S. 224, 235, 239-47 (1998). Apprendi v. New Jersey, 530 U.S.

466, 489-90 (2000), did not overrule that decision. See United

States v. Dabeit, 231 F.3d 979, 984 (5th Cir. 2000). Thus, the

district court did not err in sentencing Mora-Garibay under

8 U.S.C. § 1326(b).

The judgment of the district court is AFFIRMED. The motion

of the Government for summary affirmance is GRANTED.