United States v. Madrazo-Constante

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT October 15, 2004
Charles R. Fulbruge III
Clerk
No. 04-40374
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JUAN LUIS MADRAZO-CONSTANTE,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:03-CR-870-ALL
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Before GARZA, DeMOSS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Juan Luis Madrazo-Constante (“Madrazo-Constante”) pleaded
guilty to the charge of illegal reentry after deportation, a
violation of 8 U.S.C. §§ 1326(a) and (b). He appeals his
sentence, arguing that the district court erred in applying a 16-
level increase to his offense level on the ground that he had
been previously convicted of a drug trafficking offense.
Madrazo-Constante contends that in his prior criminal case, the
Georgia indictment charged him with possessing cocaine with
*
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this opinion should not be published and is not precedent except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. 04-40374
-2-
intent to distribute and the lesser included offense of simple
possession of cocaine. He asserts that he could have been
convicted under Georgia criminal procedure rules of the lesser
charge of simple possession, which does not constitute a drug
trafficking offense under U.S.S.G. § 2L1.2(b)(1)(A)(i).
He also asserts that this conviction for “simple possession”
does not constitute an “aggravated felony” under U.S.S.G.
§ 2L1.2(b)(1)(C), and therefore, an eight-level increase is not
warranted. He contends that the district court should have
increased his offense level under U.S.S.G. § 2L1.2(b)(1)(D),
because his prior conviction constitutes “any other felony” under
the United States Sentencing Guidelines.
The indictment and judgment relied upon by the district
court reflected that Madrazo-Constante pleaded guilty to Count 2
of the Georgia indictment which charged him with possession “with
the intent to distribute and have under their control, cocaine.”
In the absence of any evidence to the contrary, the preponderance
of the evidence supported the assessment of the sentencing
adjustment. See United States v. Alfaro, 919 F.2d 962, 965 (5th
Cir. 1990). The district court did not err in imposing a 16-
level adjustment for a felony drug trafficking offense. Madrazo-
Constante’s argument that his prior conviction does not
constitute an “aggravated felony” for an eight-level adjustment
under U.S.S.G. § 2L1.2(b)(1)(C) is foreclosed by this court’s
binding decisions. See United States v. Caicedo-Cuero, 312 F.3d
No. 04-40374
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697 (5th Cir. 2002, cert. denied, 123 S.Ct. 1948 (2003); United
States v. Hinojosa-Lopez, 130 F.3d 691, 693-94 (5th Cir. 1997).
As conceded by Madrazo-Constante, his argument that the
“felony” and “aggravated felony” provisions of 8 U.S.C.
§ 1326(b)(1) and (2) are unconstitutional in light of Apprendi v.
New Jersey, 530 U.S. 466 (2000), is foreclosed by Almendarez-
Torres v. United States, 523 U.S. 224, 235 (1998).
AFFIRMED.