United States v. Rodriguez

82 F. App'x 891

Opinion

PER CURIAM. *

Rodolfo Antonio Rodriguez pleaded guilty to illegal reentry following deportation, a violation of 8 U.S.C. § 1326. Rodriguez raises two issues that he concedes are foreclosed, but he seeks to preserve them for further review.

Rodriguez argues that his prior conviction for possession of a controlled substance is not an aggravated felony under U.S.S.G. § 2L1.2(b)(l)(C). This argument is foreclosed by our decision in United States v. Caicedo-Cuero, 312 F.3d 697, 705-11 (5th Cir.2002), cert, denied, — U.S. —, 123 S.Ct. 1948, 155 L.Ed.2d 864 (2003).

Rodriguez argues that the sentencing provisions of 8 U.S.C. § 1326(b)(1) and (b)(2) are unconstitutional in light of Ap prendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Rodriguez’s argument is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235, 239-47, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). 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.

* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.