United States v. Reyes-Bautista ( 2003 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 25, 2003
Charles R. Fulbruge III
Clerk
No. 02-41446
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MAGDALENO REYES-BAUTISTA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. L-02-CR-587-ALL
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Before DeMOSS, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
Magdaleno Reyes-Bautista appeals his guilty-plea conviction
and sentence for being found in the United States, without
permission, following deportation, in violation of 8 U.S.C.
§ 1326. Reyes-Bautista concedes that his appellate arguments are
foreclosed. He nevertheless raises two issues to preserve them
for possible en banc or Supreme Court review.
Reyes-Bautista renews his argument that the district court
erred in determining that his prior state felony conviction for
*
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that this opinion should not be published and is not precedent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. 02-41446
-2-
possession of cocaine was a “drug trafficking crime” under
8 U.S.C. § 1101(a)(43)(B) and thus an “aggravated felony” which
warranted an eight-level increase in his base offense level under
U.S.S.G. § 2L1.2(b)(1)(C)(2001) and 8 U.S.C. § 1326(b)(2).
Reyes-Bautista’s argument regarding the definitions of “drug
trafficking crime” and “aggravated felony” is foreclosed by
United States v. Caicedo-Cuero, 312 F.3d 697, 706-11 (5th Cir.
2002), cert. denied, 123 S. Ct. 1948 (2003). The district court
did not err in sentencing Reyes-Bautista under U.S.S.G.
§ 2L1.2(b)(1)(C)(2001) and 8 U.S.C. § 1326(b)(2).
Reyes-Bautista also argues, for the first time on appeal,
that 8 U.S.C. § 1326(b) is unconstitutional because it treats a
prior conviction for a felony or aggravated felony as a
sentencing factor and not as an element of the offense. Reyes-
Bautista’s argument is foreclosed by Almendarez-Torres v. United
States, 523 U.S. 224, 235, 239-47 (1998). Apprendi v. New
Jersey, 530 U.S. 466, 489-90 (2000), did not overrule that
decision. See United States v. Dabeit, 231 F.3d 979, 984 (5th
Cir. 2000). Thus, the district court did not err in sentencing
Reyes-Bautista under 8 U.S.C. § 1326(b).
The judgment of the district court is AFFIRMED.