United States v. Leal-Rivera ( 2003 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS April 24, 2003
FOR THE FIFTH CIRCUIT Charles R. Fulbruge III
Clerk
No. 02-41108
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CESAR ARMANDO LEAL-RIVERA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. M-02-CR-154-1
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Before DAVIS, BARKSDALE, and STEWART, Circuit Judges.
PER CURIAM:*
Cesar Armando Leal-Rivera appeals his guilty-plea conviction
for illegal reentry, in violation of 8 U.S.C. § 1326, and the
resulting 28-month sentence. He argues that the district court
plainly erred at sentencing in treating his prior conviction for
possession of cocaine as an aggravated felony within the meaning
of U.S.S.G. § 2L1.2(b)(1)(C). He acknowledges that his argument
is foreclosed by this court’s determination in United States v.
*
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that this opinion should not be published and is not precedent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. 02-41108
-2-
Caicedo-Cuero, 312 F.3d 697, 699-706 (5th Cir. 2002), petition
for cert. filed, (U.S. Mar. 19, 2003)(No. 02-9747) that a simple
drug possession offense is an “aggravated felony” within the
meaning of that sentencing guideline.
Leal-Rivera further concedes that his argument that drug
possession is not a drug-trafficking crime and, thus, not an
aggravated felony under 8 U.S.C. § 1101(a)(43)(B) is also
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).
Thus, the district court did not plainly err in assessing an
eight-level adjustment of Leal-Rivera’s offense level based on
his prior felony conviction.
Leal-Rivera also argues for the first time on appeal that,
in light of Apprendi v. New Jersey, 530 U.S. 466 (2000), 8 U.S.C.
§ 1326(b)(1), (b)(2) is unconstitutional because it treats a
prior conviction for an aggravated felony as a sentencing factor
and not as an element of the offense. He acknowledges that this
argument is foreclosed by Almendarez-Torres v. United States, 523
U.S. 224 (1998). Apprendi did not overrule Almendarez-Torres.
See Apprendi, 530 U.S. at 489-90; see also United States v.
Dabeit, 231 F.3d 979, 984 (5th Cir. 2000). Accordingly, this
argument lacks merit.
AFFIRMED.