United States v. Oliva-Banegas , 104 F. App'x 1000 ( 2004 )

United States Court of Appeals
Fifth Circuit
FILED
IN THE UNITED STATES COURT OF APPEALS August 18, 2004
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 03-41534
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
OSCAR OLIVA-BANEGAS,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. L-03-CR-880-1
--------------------
Before HIGGINBOTHAM, DAVIS, and PICKERING, Circuit Judges.
PER CURIAM:*
Oscar Oliva-Banegas (Oliva) pleaded guilty to one count of
illegal reentry into the United States, and the district court
sentenced him to 30 months in prison and a three-year term of
supervised release. Oliva contends that the district court erred
by characterizing his state felony conviction for simple
possession of a controlled substance as an “aggravated felony”
for purposes of U.S.S.G. § 2L1.2(b)(1)(C). This issue, however,
is foreclosed by our precedent. See United States v. Caicedo-
Cuero, 312 F.3d 697, 706-11 (5th Cir. 2002), cert. denied, 538
*
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this opinion should not be published and is not precedent except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. 03-41534
-2-
U.S. 1021 (2003); United States v. Hinojosa-Lopez, 130 F.3d 691,
693-94 (5th Cir. 1997).
Oliva contends that 8 U.S.C. § 1326(b) is unconstitutional
because it does not require the fact of a prior felony or
aggravated felony conviction to be charged in the indictment and
proved beyond a reasonable doubt. This argument is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224 (1998). See
United States v. Dabeit, 231 F.3d 979, 984 (5th Cir. 2000).
The district court’s judgment is
AFFIRMED.