United States v. Banegas-Sanchez , 108 F. App'x 880 ( 2004 )

United States Court of Appeals
Fifth Circuit
FILED
IN THE UNITED STATES COURT OF APPEALS August 18, 2004
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 03-41732
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE ARMANDO BANEGAS-SANCHEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. M-03-CR-834-1
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Before HIGGINBOTHAM, DAVIS, and PICKERING, Circuit Judges.
PER CURIAM:*
Jose Armando Banegas-Sanchez (Banegas) appeals his
conviction and sentence for illegal reentry following
deportation. He argues that the district court plainly erred by
characterizing his state felony conviction for simple possession
of cocaine as an “aggravated felony” for purposes of U.S.S.G.
§ 2L1.2(b)(1)(C) and 8 U.S.C. § 1101(a)(43)(B), when that same
offense was punishable only as a misdemeanor under federal law.
This issue, however, is foreclosed by United States v. Caicedo-
*
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that this opinion should not be published and is not precedent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. 03-41732
-2-
Cuero, 312 F.3d 697, 706-11 (5th Cir. 2002), cert. denied, 538
U.S. 1021 (2003), and United States v. Hinojosa-Lopez, 130 F.3d
691, 694 (5th Cir. 1997). Therefore, Banegas has not
demonstrated plain error.
Banegas also argues that the “felony” and “aggravated
felony” provisions of 8 U.S.C. § 1326(b) are unconstitutional in
light of Apprendi v. New Jersey, 530 U.S. 466 (2000). He
acknowledges that his argument is foreclosed, but seeks to
preserve the issue for possible Supreme Court review. As Banegas
concedes, this issue is foreclosed. See Almendarez-Torres v.
United States, 523 U.S. 224, 247 (1998); United States v. Dabeit,
231 F.3d 979, 984 (5th Cir. 2000).
AFFIRMED.