United States v. Martinez-Martinez , 110 F. App'x 469 ( 2004 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT October 21, 2004
Charles R. Fulbruge III
Clerk
No. 04-40220
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
OCIEL MARTINEZ-MARTINEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:03-CR-777-ALL
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Before JOLLY, JONES, and WIENER, Circuit Judges.
PER CURIAM:*
Ociel Martinez-Martinez (Martinez) appeals his conviction
and sentence for illegal reentry following deportation. He
argues that the district court plainly erred by characterizing
his state felony conviction for simple possession of marijuana as
an “aggravated felony” for purposes of U.S.S.G. § 2L1.2(b)(1)(C)
and 8 U.S.C. § 1101(a)(43)(B), when that same offense was
punishable only as a misdemeanor under federal law. This issue,
however, is foreclosed by United States v. Caicedo-Cuero,
*
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this opinion should not be published and is not precedent except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. 04-40220
-2-
312 F.3d 697, 706-11 (5th Cir. 2002), cert. denied, 538 U.S. 1021(2003), and United States v. Hinojosa-Lopez, 130 F.3d 691, 694
(5th Cir. 1997). Therefore, Martinez has not demonstrated plain
error.
Martinez also argues that the “felony” and “aggravated
felony” provisions of 8 U.S.C. § 1326(b) are unconstitutional in
light of Apprendi v. New Jersey, 530 U.S. 466 (2000). He
acknowledges that his argument is foreclosed, but seeks to
preserve the issue for possible Supreme Court review. As
Martinez concedes, this issue is foreclosed. See Almendarez-
Torres v. United States, 523 U.S. 224, 247 (1998); United States
v. Dabeit, 231 F.3d 979, 984 (5th Cir. 2000).
AFFIRMED.