United States v. Batalla-Sanchez ( 2003 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 25, 2003
Charles R. Fulbruge III
Clerk
No. 02-21161
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RICARDO BATALLA-SANCHEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-02-CR-174-1
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Before DeMOSS, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
Ricardo Batalla-Sanchez (“Batalla-Sanchez”) appeals the
sentence following his guilty plea for illegal reentry into the
United States following deportation. Batalla-Sanchez argues that
his prior conviction for possession of marihuana is not an
aggravated felony under the November 1, 2001, Sentencing
Guidelines § 2L1.2(b)(1)(C). He also argues that the sentencing
provisions in 8 U.S.C. § 1326(b)(1) & (b)(2) are unconstitutional
based on Apprendi v. New Jersey, 530 U.S. 466 (2000). Batalla-
*
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that this opinion should not be published and is not precedent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. 02-21161
-2-
Sanchez concedes that his arguments are foreclosed, but he
nevertheless seeks to preserve them for Supreme Court review.
Batalla-Sanchez’ arguments regarding the definitions of
“drug trafficking offense” and “aggravated felony” are foreclosed
by our decision in United States v. Caicedo-Cuero, 312 F.3d 697,
705-11 (5th Cir. 2002), cert. denied, 123 S. Ct. 1948 (2003).
Batalla-Sanchez’ contention that the enhancement provisions in
8 U.S.C. § 1326(b)(1) & (b)(2) are unconstitutional lacks merit
because Apprendi did not overrule Almendarez-Torres v. United
States, 523 U.S. 24 (1998). See Apprendi, 530 U.S. at 489-90;
United States v. Dabeit, 231 F.3d 979, 984 (5th Cir. 2000).
For the foregoing reasons, Batalla-Sanchez’ sentence is
AFFIRMED.