United States v. Ochoa-Navarro

Opinion

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 02-50606 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JULIO OCHOA-NAVARRO, also known as Pedro Nunes-Cuellar,

Defendant-Appellant.

Appeal from the United States District Court for the Western District of Texas (EP-01-CR-1132-ALL-DB)

December 31, 2002

Before BARKSDALE, DeMOSS, AND BENAVIDES, Circuit Judges.

PER CURIAM:*

Julio Ochoa-Navarro was convicted of illegal reentry into the

United States after deportation, in violation of 8 U.S.C. § 1326.

He appeals the district court’s interpretation of U.S.S.G.

§ 2L1.2(b)(1)(C) at his resentencing. Our court reviews de novo a

district court’s interpretation of sentencing guidelines. E.g.,

United States v. Cervantes-Nava, 281 F.3d 501, 506 (5th Cir.),

cert. denied, 122 S. CT. 2379 (2002).

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. Ochoa contends: his prior felony conviction for possession of

heroin did not merit the eight-level adjustment provided in

§ 2L1.2(b)(1)(C) for an “aggravated felony”; and, instead, he

should have received only the four-level adjustment provided in

§ 2L1.2(b)(1)(D) for “any other felony”. Ochoa’s contentions

regarding the definitions of “drug trafficking offense” and

“aggravated felony” were quite recently rejected by our court in

United States v. Caicedo-Cuero, No. 02-20751, 2002 WL 31521599, *6-

*11 (5th Cir. 2002).

Ochoa further asserts § 1326(b)(2) is unconstitutional because

it treats a prior conviction for an aggravated felony as a

sentencing factor, not as an element of the offense. Ochoa

concedes his assertion is foreclosed by Almendarez-Torres v. United

States, 523 U.S. 224 (1998), but he seeks to preserve the issue for

Supreme Court review in light of the decision in Apprendi v. New

Jersey, 530 U.S. 466 (2000). Id. Apprendi did not overrule

Almendarez-Torres. See Apprendi, 530 U.S. at 489-90; United States

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

AFFIRMED