United States v. Contreras ( 2003 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-21179
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FREDI MAURICIO CONTRERAS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-01-CR-314-1
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February 20, 2003
Before WIENER, EMILIO M. GARZA, and CLEMENT, Circuit Judges.
PER CURIAM:*
Fredi Mauricio Contreras was convicted of 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 resentencing. He argues that
his prior felony conviction for possession of heroin did not
merit the eight-level adjustment provided in § 2L1.2(b)(1)(C) for
an aggravated felony, and that he should have received only the
four-level adjustment provided in § 2L1.2(b)(1)(D) for “any other
*
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that this opinion should not be published and is not precedent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. 01-21179
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felony.” Contreras’s arguments regarding the definitions of
“drug trafficking offense” and “aggravated felony” were recently
rejected by this court in 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
§ 2L1.2(b)(1)(C), to Contreras’s sentencing guideline
calculation. Id.
For the first time on appeal, Contreras 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. Contreras 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.