United States v. Rodriguez-Castillo

• Court: Court of Appeals for the Fifth Circuit
• Decided: March 13, 2003
• Docket: 02-20680
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 02-20680 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ROGELIO RODRIGUEZ-CASTILLO,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. H-01-CR-912-1 -------------------- March 12, 2003

Before JONES, STEWART and DENNIS, Circuit Judges.

PER CURIAM:*

Rogelio Rodriguez-Castillo (“Rodriguez”) appeals his

guilty-plea conviction for illegal reentry, in violation of

8 U.S.C. § 1326, and resulting 27-month sentence. He renews his

argument 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 R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 02-20680 -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.” Rodriguez’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, 699-706 (5th Cir.

2002. Rodriguez’s argument that drug possession is not an

aggravated felony under 8 U.S.C. §§ 1101(a)(43)(B) and 1326(b)(2)

is foreclosed by our precedent in United States v. Rivera, 265 F.3d

310 (5th Cir. 2001), cert. denied, 534 U.S. 1146 (2002), and United

States v. Hinojosa-Lopez, 130 F.3d 691 (5th Cir. 1997). Thus, the

district court did not err in assessing an eight-level adjustment.

Rodriguez also argues for the first time on appeal that, in

light of Apprendi v. New Jersey, 530 U.S. 466 (2000), 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. This argument is foreclosed by

Almendarez-Torres v. United States, 523 U.S. 224 (1998). 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.