United States v. Rodriguez-Rodriguez

282 F. App'x 348

Opinion

PER CURIAM: *

Benjamin Rodriguez-Rodriguez (Rodriguez) appeals his conviction and sentence for illegal reentry. He argues that the district court erred in enhancing his sentence pursuant to U.S.S.G. § 2L1.2(b)(l)(A)(i) based on a finding that his Texas conviction for possession of a controlled substance with intent to deliver was a “drug trafficking offense.” Rodriguez correctly concedes that his Guidelines argument is foreclosed by United States v. Ford, 509 F.3d 714, 717 (5th Cir.2007), and he raises it solely to preserve its further review.

In light of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), Rodriguez also challenges the constitutionality of 8 U.S.C. § 1326(b)’s treatment of prior felony and aggravated felony convictions as sentencing factors rather than elements of the offense that must be found by a jury. This argument is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). United States v. Pineda-Arrellano, 492 F.3d 624, 625 (5th Cir.2007), cert. denied, — U.S. —, 128 S.Ct. 872, 169 L.Ed.2d 737 (2008).

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* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.