United States v. Sauzo-Izaguirre

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT December 17, 2004
Charles R. Fulbruge III
Clerk
No. 04-40434
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CARLOS ANDRES SAUZO-IZAGUIRRE,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:03-CR-1682-1
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Before KING, Chief Judge, and DeMOSS and CLEMENT, Circuit Judges.
PER CURIAM:*
Carlos Andres Sauzo-Izaguirre (“Sauzo”) pleaded guilty to
one count of illegal reentry into the United States. Sauzo
argues that the district court erred by characterizing his state
felony conviction for possession of a controlled substance as an
“aggravated felony” for purposes of U.S.S.G. § 2L1.2(b)(1)(C),
because that same offense is punishable only as a misdemeanor
under federal law. This issue, however, is foreclosed. See
United States v. Caicedo-Cuero, 312 F.3d 697, 706-11 (5th Cir.
2002); United States v. Hinojosa-Lopez, 130 F.3d 691, 693-94 (5th
*
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this opinion should not be published and is not precedent except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. 04-40434
-2-
Cir. 1997). Thus, Sauzo fails to show that the district court
erred by characterizing his state conviction as an aggravated
felony for U.S.S.G. § 2L1.2(b)(1)(C) purposes and by sentencing
him accordingly.
Sauzo argues that 8 U.S.C. § 1326(b) is unconstitutional on
its face and as applied in his case because it does not require
the fact of a prior felony or aggravated felony conviction to be
charged in the indictment and proved beyond a reasonable doubt.
This argument is foreclosed by Almendarez-Torres v. United
States, 523 U.S. 224 (1998). See United States v. Dabeit,
231 F.3d 979, 984 (5th Cir. 2000).
Sauzo also argues that, if Almendarez-Torres is overruled
and if Blakely v. Washington, 124 S. Ct. 2531 (2004), applies to
the federal sentencing guidelines, the district court violated
his right to a trial by jury by enhancing his sentence based on
his prior convictions, which were not submitted to a jury or
admitted by Sauzo. In addition to the obstacle posed by
Almendarez-Torres, Sauzo’s argument regarding the effect of
Blakely is foreclosed by United States v. Pineiro, 377 F.3d 464,
465-66 (5th Cir. 2004), petition for cert. filed (U.S. July 14,
2004) (No. 04-5263), in which this court held that Blakely does
not apply to the federal sentencing guidelines.
The judgment of the district court is AFFIRMED. ``