United States v. Iwuoha ( 2003 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT August 19, 2003
Charles R. Fulbruge III
Clerk
No. 02-21095
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CHRISTOPHER CHIGOZIE IWUOHA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-02-CR-105-ALL
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Before JONES, WIENER, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Christopher Iwuoha appeals his sentence for his guilty-plea
conviction of illegal reentry into the country after having been
deported following an aggravated felony conviction. See 8 U.S.C.
§ 1326(b)(2). For the first time on appeal, Iwuoha argues:
(1) he received two criminal history points based upon an
erroneous finding that he committed his instant offense while
he was serving a supervised release term for his prior drug
*
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that this opinion should not be published and is not precedent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. 02-21095
-2-
conviction, and (2) 8 U.S.C. § 1326(b)(2) is unconstitutional
in light of Apprendi v. New Jersey, 530 U.S. 466 (2000).
The record reveals that Iwuoha committed the instant offense
while a warrant for his violation of his supervised release terms
was pending. The addition of two criminal history points was not
plain error. See U.S.S.G. § 4A1.1(d); § 4A1.1, comment. (n.4);
United States v. Anderson, 184 F.3d 479, 480-81 (5th Cir. 1999).
As conceded by Iwuoha, his challenge to the constitutionality
of 8 U.S.C. § 1326(b)(2) is foreclosed by Almendarez-Torres
v. United States, 523 U.S. 224, 235 (1998), which was not
overruled by Apprendi. See United States v. Dabeit, 231 F.3d
979, 984 (5th Cir. 2000).
AFFIRMED.