United States v. Rodriguez-Rodriguez

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 19, 2008
No. 07-40601
Conference Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
BENJAMIN RODRIGUEZ-RODRIGUEZ
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:06-CR-1139-1
Before JONES, Chief Judge, and JOLLY and DENNIS, Circuit Judges.
PER CURIAM:*
Benjamin Rodriguez-Rodriguez (Rodriguez) appeals his conviction and
sentence for illegal reentry. He argues that the district court erred in enhancing
his sentence pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(i) based on a finding that his
Texas conviction for possession of a controlled substance with intent to deliver
was a “drug trafficking offense.” Rodriguez correctly concedes that his
*
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should not be published and is not precedent except under the limited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. 07-40601
Guidelines argument is foreclosed by United States v. Ford, 509 F.3d 714, 717
(5th Cir. 2007), and he raises it solely to preserve its further review.
In light of Apprendi v. New Jersey, 530 U.S. 466 (2000), Rodriguez also
challenges the constitutionality of 8 U.S.C. § 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.
2