United States v. Rios-Garcia ( 2003 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-20082
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JUAN CARLOS RIOS-GARCIA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-01-CR-576-ALL
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February 20, 2003
Before WIENER, EMILIO M. GARZA, and CLEMENT, Circuit Judges.
PER CURIAM:*
Juan Carlos Rios-Garcia pleaded guilty to one charge of
illegal reentry into the United States, a violation of 8 U.S.C.
§ 1326, and he was sentenced to 30 months in prison. He now
appeals his conviction and sentence. He first argues that the
district court erred by applying U.S.S.G. § 2L1.2(b)(1)(C) at his
sentencing. He contends that his prior felony conviction for
possession of cocaine did not merit the eight-level enhancement
provided in § 2L1.2(b)(1)(C) for an aggravated felony and that he
*
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that this opinion should not be published and is not precedent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. 02-20082
-2-
should have received only the four-level enhancement provided in
§ 2L1.2(b)(1)(D) for “any other felony.” Rios-Garcia’s arguments
on this issue are foreclosed by our decision in United States v.
Caicedo-Cuero, 312 F.3d 697, 706-11 (5th Cir. 2002).
Rios-Garcia also argues, for the first time on appeal, that
8 U.S.C. § 1326(b)(1) and (b)(2) are unconstitutional because
they treat a prior conviction for an aggravated felony as a
sentencing factor and not an element of the offense. Rios-Garcia
concedes that this argument is foreclosed by Almendarez-Torres v.
United States, 523 U.S. 224 (1998), but he seeks to preserve the
issue for Supreme Court review in light of Apprendi v. New
Jersey, 530 U.S. 466 (2000). Apprendi did not overrule
Almendarez-Torres. See Apprendi, 530 U.S. at 489-90; see also
United States v. Dabeit, 231 F.3d 979, 984 (5th Cir. 2000).
Rios-Garcia has shown no error in the judgment of the district
court. Accordingly, that judgment is AFFIRMED.