United States v. Mireles-Hernandez ( 2003 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-20306
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JUAN PEDRO MIRELES-HERNANDEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-01-CR-796-ALL
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February 20, 2003
Before WIENER, EMILIO M. GARZA, and CLEMENT, Circuit Judges.
PER CURIAM:*
Juan Pedro Mireles-Hernandez was convicted after a guilty
plea to illegal reentry into the United States after deportation,
in violation of 8 U.S.C. § 1326, and sentenced to 37 months'
imprisonment. He argues that the district court erred by
applying U.S.S.G. § 2L1.2(b)(1)(C) at his sentencing. He argues
that his prior felony conviction for possession of marijuana did
not merit the eight-level adjustment provided in § 2L1.2(b)(1)(C)
*
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that this opinion should not be published and is not precedent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. 02-20306
-2-
for an aggravated felony, and that he should have received only
the four-level adjustment provided in § 2L1.2(b)(1)(D) for "any
other felony." Mireles-Hernandez's arguments regarding the
definitions of "drug trafficking offense" and "aggravated felony"
for purposes of the sentencing guidelines were recently rejected
by this court in United States v. Caicedo-Cuero, 312 F.3d 697,
706-11 (5th Cir. 2002).
Mireles-Hernandez also argues that drug possession is not
an aggravated felony under 8 U.S.C. §§ 1101(a)(43)(B) and
1326(b)(2), but he concedes that his argument is foreclosed by
our precedent in United States v. Rivera, 265 F.3d 310 (5th Cir.
2001), cert. denied, 534 U.S. 1146 (2002), and United States v.
Hinojosa-Lopez, 130 F.3d 691 (5th Cir. 1997), and he raises the
issue only to preserve it for possible Supreme Court review.
Thus, the district court did not err in assessing an eight-level
adjustment.
For the first time on appeal, Mireles-Hernandez also argues
that 8 U.S.C. § 1326(b)(1) and (b)(2) are unconstitutional
because they treat a prior conviction for an aggravated felony
as a sentencing factor and not an element of the offense.
Mireles-Hernandez concedes that this argument is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224 (1998), but he
seeks to preserve the issue for Supreme Court review in light of
Apprendi v. New Jersey, 530 U.S. 466 (2000). Apprendi did not
overrule Almendarez-Torres. See Apprendi, 530 U.S. at 489-90;
No. 02-20306
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see also United States v. Dabeit, 231 F.3d 979, 984 (5th Cir.
2000). Accordingly, this argument lacks merit.
AFFIRMED.