United States v. Castillo-Rosales ( 2003 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-21261
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAVIER CASTILLO-ROSALES,
also known as Francisco Castillo,
also known as Felipe Castillo-Rosales,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-01-CR-564-ALL
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February 20, 2003
Before WIENER, EMILIO M. GARZA, and CLEMENT, Circuit Judges.
PER CURIAM:*
Javier Castillo-Rosales pleaded guilty to illegal reentry
into the United States after deportation in violation of 8 U.S.C.
§ 1326. He appeals the district court’s interpretation of
U.S.S.G. § 2L1.2(b)(1)(C) at his sentencing. He argues that his
prior felony conviction for possession of cocaine did not merit
the eight-level adjustment provided in U.S.S.G. § 2L1.2(b)(1)(C)
for an aggravated felony. He asserts that he should have
*
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that this opinion should not be published and is not precedent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. 02-21261
-2-
received only the four-level adjustment provided in U.S.S.G.
§ 2L1.2(b)(1)(D) for “any other felony.” Castillo-Rosales’s
arguments are foreclosed by United States v. Caicedo-Cuero,
312 F.3d 697, 706-11 (5th Cir. 2002). The district court did not
err in assessing an eight-level adjustment, pursuant to U.S.S.G.
§ 2L1.2(b)(1)(C), to Castillo-Rosales’s sentencing guideline
calculation.
For the first time on appeal, Castillo-Rosales argues that
8 U.S.C. § 1326(b)(2) is unconstitutional because it treats a
prior conviction for an aggravated felony as a mere sentencing
factor and not an element of the offense. He contends that the
unconstitutionality of the statute is not remedied by treating
the prior aggravated felony as an element of the offense and
including it in the indictment. Castillo-Rosales concedes that
his 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 the decision in 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).
Accordingly, this argument lacks merit.
AFFIRMED.