United States v. Villarreal-Orozco , 278 F. App'x 382 ( 2008 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
May 15, 2008
No. 06-40282
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
ABRAHAM VILLARREAL-OROZCO, also known as Abrahan Orozco-Villarreal
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:05-CR-1371
Before STEWART, OWEN, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Abraham Villarreal-Orozco appeals his guilty plea conviction and sentence
for illegal reentry following deportation in violation of 8 U.S.C. § 1326.
Villarreal-Orozco contends that the district court misapplied the Guidelines and
committed reversible error when it characterized his prior Texas conviction for
possession with intent to deliver a controlled substance as a drug trafficking
offense for purposes of U.S.S.G. § 2L1.2(b)(1)(A)(i). Because Villarreal-Orozco
preserved his argument in the district court, we review that court’s
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 06-40282
interpretation of the Guidelines de novo. See United States v. Villegas, 404 F.3d
355, 359 (5th Cir. 2005).
The record demonstrates that Villarreal-Orozco was previously convicted
of possession with intent to deliver a controlled substance in violation of TEX.
HEALTH & SAFETY CODE ANN. § 481.112(a). This court recently held that a
§ 481.112(a) conviction for possession with intent to deliver a controlled
substance is indistinguishable from the offense of possession with intent to
distribute and, thus, qualifies as a “controlled substance offense” for purposes
of U.S.S.G. § 2K2.1(a). United States v. Ford, 509 F.3d 714, 717 (5th Cir. 2007).
Further, this court noted that the definitions of “drug trafficking offense” under
§ 2L1.2 and “controlled substance offense” under § 2K2.1 are effectively identical
for purposes of determining if a prior § 481.112(a) conviction for possession with
intent to deliver a controlled substance justifies a sentencing enhancement based
on either section. Id. at 717 n.2. Therefore, in light of Ford, the district court
did not err when it characterized Villarreal-Orozco’s prior Texas conviction for
possession with intent to deliver a controlled substance as a drug trafficking
offense for purposes of § 2L1.2(b)(1)(A)(i).
In light of Apprendi v. New Jersey, 530 U.S. 466 (2000), Villarreal-Orozco
challenges the constitutionality of § 1326(b)’s treatment of prior felony and
aggravated felony convictions as sentencing factors rather than elements of the
offense that must be found by a jury. This argument is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998). United States v.
Pineda-Arrellano, 492 F.3d 624, 625 (5th Cir. 2007), cert. denied, 128 S. Ct. 872
(2008).
AFFIRMED.
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