United States v. Urapo-Pacheco

Opinion

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS April 24, 2003 FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk

No. 02-20715 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOSE LUIS URAPO-PACHECO,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. H-02-CR-21-1 --------------------

Before DAVIS, BARKSDALE, and STEWART, Circuit Judges.

PER CURIAM:*

Jose Luis Urapo-Pacheco (“Urapo”) appeals his guilty-plea

conviction and sentence for illegal reentry in violation of 8

U.S.C. § 1326. Urapo concedes that his arguments are foreclosed

by circuit law but raises two issues to preserve them for

possible en banc and Supreme Court review.

Urapo renews his argument that his prior felony conviction

for possession of cocaine did not merit the eight-level

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 02-20715 -2-

adjustment under U.S.S.G. § 2L1.2(b)(1)(C) for an aggravated

felony and that he should have received only the four-level

adjustment provided in U.S.S.G. § 2L1.2(b)(1)(D) for “any other

felony.” Urapo’s argument regarding the definitions of “drug

trafficking offense” and “aggravated felony” was recently

foreclosed by United States v. Caicedo-Cuero, 312 F.3d 697, 705-

07 (5th Cir. 2002), petition for cert. filed, (Mar. 19, 2003)

(02-9747). The district court thus did not err in assessing the

eight-level adjustment.

Urapo also argues, for the first time on appeal, that 8

U.S.C. § 1326 is unconstitutional because it treats a prior

conviction for an aggravated felony as a mere sentencing factor

and not as an element of the offense. Apprendi v. New Jersey,

530 U.S. 466 (2000), did not overrule Almendarez-Torres v. United

States, 523 U.S. 224 (1998). See Apprendi, 530 U.S. at 489-90;

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

2000).

The judgment of the district court is AFFIRMED.