United States v. Villa-Negrete , 87 F. App'x 951 ( 2004 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT February 18, 2004
Charles R. Fulbruge III
Clerk
No. 03-40901
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SILVANO VILLA-NEGRETE,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. B-03-CR-63-ALL
--------------------
Before HIGGINBOTHAM, EMILIO M. GARZA, and PRADO, Circuit Judges.
PER CURIAM:*
Silvano Villa-Negrete appeals his guilty-plea conviction
and sentence for being found illegally present in the United
States after deportation pursuant to 8 U.S.C. § 1326(a) and (b).
He argues that the district court plainly erred in characterizing
his prior state felony conviction for simple possession of
marijuana as an aggravated felony within the context of
U.S.S.G. § 2L1.2(b)(1)(C). He acknowledges that his argument
is foreclosed by United States v. Caicedo-Cuero, 312 F.3d 697*
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that this opinion should not be published and is not precedent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. 03-40901
-2-
(5th Cir. 2002), cert. denied, 123 S. Ct. 1948 (2003), but
wishes to preserve the issue for further review. Caicedo-Cuero
determined that simple drug possession qualifies as an aggravated
felony under U.S.S.G. § 2L1.2(b)(1)(C). 312 F.3d at 706-11.
Thus, the district court did not plainly err in treating Villa-
Negrete’s prior state conviction for simple possession of
marijuana as an aggravated felony.
Villa-Negrete also argues for the first time on appeal
that a prior state felony conviction for simple possession is
not a drug trafficking crime and not an aggravated felony under
8 U.S.C. § 1101(a)(43)(B) or 8 U.S.C. § 1326(b)(2). He concedes
that his argument is foreclosed by current Fifth Circuit law,
citing United States v. Rivera, 265 F.3d 310, 312-13 (5th Cir.
2001), cert. denied, 534 U.S. 1146 (2002), and United States v.
Hinojosa-Lopez, 130 F.3d 691, 693-94 (5th Cir. 1997). Thus, the
district court did not plainly err in applying the eight-level
adjustment to his offense level based on his prior state felony
drug conviction. Jerome v. United States, 318 U.S. 101 (1943)
does not affect the binding precedential value of Rivera and
Hinojosa-Lopez.
Villa-Negrete argues, pursuant to Apprendi v. New Jersey,
530 U.S. 466 (2000), that the “felony” and “aggravated felony”
provisions of 8 U.S.C. § 1326(b)(1) and (2) are elements of the
offense, not sentence enhancements, making those provisions
unconstitutional. Villa-Negrete concedes that this argument is
No. 03-40901
-3-
foreclosed by Almendarez-Torres v. United States, 523 U.S. 224(1998), and he raises it for possible review by the Supreme
Court.
This argument is foreclosed by Almendarez-Torres, 523 U.S.
at 235. We must follow the precedent set in Almendarez-Torres
“unless and until the Supreme Court itself determines to overrule
it.” United States v. Dabeit, 231 F.3d 979, 984 (5th Cir. 2000)
(internal quotation and citation omitted).
AFFIRMED.