United States v. Gonzalez-Jimenez , 105 F. App'x 637 ( 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. 03-41694
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAIME GONZALEZ-JIMENEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. L-03-CR-1080-ALL
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Before HIGGINBOTHAM, DAVIS, and PICKERING, Circuit Judges.
PER CURIAM:*
Jaime Gonzalez-Jimenez pleaded guilty to one count of
illegal reentry into the United States following deportation, and
the district court sentenced him to 34 months in prison and a
three-year term of supervised release. Gonzalez-Jimenez argues
that the district court 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), when that same
offense is punishable only as a misdemeanor under federal law.
This issue, however, is foreclosed by our precedent. See United
*
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this opinion should not be published and is not precedent except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. 03-41694
-2-
States v. Caicedo-Cuero, 312 F.3d 697, 706-11 (5th Cir. 2002),
cert. denied, 538 U.S. 1021 (2003); United States v. Hinojosa-
Lopez, 130 F.3d 691, 693-94 (5th Cir. 1997). Gonzalez-Jimenez
has not shown that the district court erred by characterizing his
state conviction as an aggravated felony for U.S.S.G.
§ 2L1.2(b)(1)(C) purposes and by sentencing him accordingly.
Gonzalez-Jimenez argues that 8 U.S.C. § 1326(b) is
unconstitutional on its face and as applied in his case because
it does not require the fact of a prior felony or aggravated
felony conviction to be charged in the indictment and proved
beyond a reasonable doubt. This argument is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224 (1998). See
United States v. Dabeit, 231 F.3d 979, 984 (5th Cir. 2000).
Gonzalez-Jimenez has shown no error in the district court’s
judgment. Accordingly, that judgment is AFFIRMED.