United States v. Ramirez-Sosa

• Court: Court of Appeals for the Fifth Circuit
• Decided: February 21, 2003
• Docket: 02-20397
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 02-20397 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JAVIER RAMIREZ-SOSA,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. H-01-CR-722-ALL -------------------- February 20, 2003 Before WIENER, EMILIO M. GARZA, and CLEMENT, Circuit Judges.

PER CURIAM:*

Javier Ramirez-Sosa was convicted after a guilty plea to

illegal reentry into the United States after deportation, in

violation of 8 U.S.C. § 1326. He appeals his conviction and

sentence; finding no error, we affirm.

Ramirez argues that the district court erred by applying

U.S.S.G. § 2L1.2(b)(1)(C) at his sentencing. He argues that his

prior felony conviction for possession of cocaine did not merit

the eight-level adjustment provided in § 2L1.2(b)(1)(C) for an

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 02-20397 -2-

aggravated felony and that he should have received only the

four-level adjustment provided in § 2L1.2(b)(1)(D) for “any other

felony.” Ramirez’s arguments regarding the definitions of “drug

trafficking offense” and “aggravated felony” for purposes of the

sentencing guidelines were recently rejected by this court in

United States v. Caicedo-Cuero, 312 F.3d 397, 706-11 (5th Cir.

2002).

Ramirez also argues that 8 U.S.C. §§ 1326(b)(1) and (b)(2)

are unconstitutional because they treat a prior conviction for an

aggravated felony as a sentencing factor and not an element of

the offense. Ramirez concedes that this argument 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 Apprendi v. New Jersey, 530 U.S. 466 (2000). Apprendi did not

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

see also United States v. Dabeit, 231 F.3d 979, 984 (5th Cir.

2000). Accordingly, this argument lacks merit.

AFFIRMED.