United States v. Moreno-Castillo ( 2003 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS April 24, 2003
Charles R. Fulbruge III
FOR THE FIFTH CIRCUIT Clerk
No. 02-40710
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JUAN CARLOS MORENO-CASTILLO,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. B-02-CR-67-1
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Before DAVIS, BARKSDALE, and STEWART, Circuit Judges.
PER CURIAM:*
Juan Carlos Moreno-Castillo (“Moreno”) appeals his guilty-
plea conviction and sentence for illegal reentry in violation of
8 U.S.C. § 1326. Moreno concedes that his arguments are
foreclosed by circuit law but raises two issues to preserve them
for possible en banc and Supreme Court review.
*
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that this opinion should not be published and is not precedent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. 02-40710
-2-
Moreno renews his argument that his prior felony conviction
for possession of a controlled substance did not merit the eight-
level adjustment under U.S.S.G. § 2L1.2(b)(1)(C) for an
aggravated felony and that he should have received only the four-
level adjustment provided in U.S.S.G. § 2L1.2(b)(1)(D) for “any
other felony.” Moreno’s argument regarding the definitions of
“drug trafficking offense” and “aggravated felony” was recently
foreclosed by United States v. Caicedo-Cuero, 312 F.3d 697, 705-
07 (5th Cir. 2002), petition for cert. filed, (Mar. 19, 2003)
(02-9747). The district court thus did not err in assessing the
eight-level adjustment.
Moreno also argues, for the first time on appeal, that
8 U.S.C. § 1326 is unconstitutional because it treats a prior
conviction for an aggravated felony as a mere sentencing factor
and not as an element of the offense. Apprendi v. New Jersey,
530 U.S. 466 (2000), did not overrule Almendarez-Torres v. United
States, 523 U.S. 224 (1998). See Apprendi, 530 U.S. at 489-90;
see also United States v. Dabeit, 231 F.3d 979, 984 (5th Cir.
2000).
The judgment of the district court is AFFIRMED.