United States v. Lozano-Ortiz ( 2001 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-41323
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MIGUEL ANTHONY LOZANO-ORTIZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. M-00-CR-349-1
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October 25, 2001
Before WIENER, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Miguel Anthony Lozano-Ortiz appeals his sentence following
his guilty-plea conviction of attempting to enter the United
States after having been previously deported subsequent to an
aggravated-felony conviction, in violation of 8 U.S.C. § 1326.
Lozano-Ortiz argues that the district court misapprehended its
authority to grant a downward departure based on Lozano-Ortiz’
medical condition. He also asserts that the felony conviction
that resulted in his increased sentence under 8 U.S.C.
§ 1326(b)(2) was an element of the offense that should have been
*
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that this opinion should not be published and is not precedent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. 00-41323
-2-
charged in the indictment, and that the district court erred in
applying U.S.S.G. § 2L1.2(b)(1)(A) because the rule of lenity
required the court to interpret the term “drug trafficking crime”
to exclude his state conviction for possession of marijuana.
Lozano-Ortiz concedes that his “element of the offense” and “rule
of lenity” arguments are foreclosed by Supreme Court and Fifth
Circuit precedent, but nevertheless seeks to preserve these
issues for further Supreme Court review.
We have reviewed the record and the briefs submitted by the
parties and hold that this court lacks jurisdiction to consider
the district court’s refusal to grant a downward departure based
on Lozano-Ortiz’ medical condition. See United States v.
Landerman, 167 F.3d 895, 899 (5th Cir. 1999); United States v.
Palmer, 122 F.3d 215, 222 (5th Cir. 1997).
As acknowledged by Lozano-Ortiz, his remaining arguments are
foreclosed by Supreme Court and Fifth Circuit precedent. See
Apprendi v. New Jersey, 530 U.S. 466 (2000); Almendarez-Torres v.
United States, 523 U.S. 224 (1998); United States v. Dabeit, 231
F.3d 979, 984 (5th Cir. 2000), cert. denied, 121 S. Ct. 1214(2001); United States v. Hernandez-Avalos, 251 F.3d 505, 508 (5th
Cir. 2001), cert. denied, ___ U.S. ___, 2001 WL 992061 (U.S. Oct.
1, 2001) (No. 01-5773); United States v. Hinojosa-Lopez, 130 F.3d
691, 694 (5th Cir. 1997).
AFFIRMED.