United States v. Urapo-Pacheco ( 2003 )

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.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-02-CR-21-1
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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that this opinion should not be published and is not precedent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.