United States v. Rocha-Gonzalez ( 2001 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-51042
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RAUL ROCHA-GONZALEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. EP-00-CR-636-1
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August 14, 2001
Before JONES, SMITH, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Raul Rocha-Gonzalez (Rocha) appeals his conviction and
sentence for illegal reentry. See 8 U.S.C. § 1326. He argues that
(1) the district court erred when it denied his motion to suppress;
(2) the district court erred when it denied his motion to dismiss
the indictment because the prior deportation proceeding violated
due process; and (3) in light of Apprendi v. New Jersey, 530 U.S.
466 (2000), the indictment was defective because it failed to
allege that Rocha had an aggravated felony, or, in the alternative,
8 U.S.C. § 1326 is an unconstitutional sentencing enhancement.
*
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that this opinion should not be published and is not precedent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. 00-51042
-2-
The district court did not err when it denied Rocha’s
motion to suppress because the evidence obtained at the traffic
stop was nonsuppressible identity evidence. See United States v.
Roque-Villanueva, 175 F.3d 345, 346 (5th Cir. 1999). Rocha’s
deportation proceeding pursuant to 8 U.S.C. § 1228(b) did not
violate due process because a state conviction for simple
possession of a controlled substance qualifies as an aggravated
felony, therefore bringing Rocha under the provisions for expedited
deportation proceedings. See United States v. Hernandez-Avalos,
251 F.3d 505, 2001 WL 502383, at 11 (5th Cir. May 11, 2001)(No. 00-
50186). Rocha’s contention that in light of Apprendi the
aggravated felony should have been alleged in the indictment is
foreclosed by controlling precedent. See Almendarez-Torres v.
United States, 523 U.S. 224, 228-35 (1998); United States v.
Dabeit, 231 F.3d 979, 984 (5th Cir. 2000), cert. denied, 121 S. Ct.
1214 (2001). Accordingly, Rocha’s conviction and sentence are
AFFIRMED.