United States v. Cedillos

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT July 25, 2006
Charles R. Fulbruge III
Clerk
No. 06-40097
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
OSMIN ANTONIO CEDILLOS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:05-CR-530
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Before JOLLY, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Osmin Antonio Cedillos appeals his guilty plea conviction
and sentence for illegal reentry. He argues that (1) his North
Carolina felony conviction for possession of marijuana with
intent to distribute did not constitute a “felony drug
trafficking offense” under U.S.S.G. § 2L1.2(b)(1)(B) (2004);
(2) the district court plainly erred in assessing two criminal
history points for two prior sentences pursuant to U.S.S.G.
§ 4A1.1(c); and (3) 8 U.S.C. § 1326(b)(1)&(2) are
*
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this opinion should not be published and is not precedent except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. 06-40097
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unconstitutional in light of Apprendi v. New Jersey, 530 U.S. 466
(2000).
On de novo review, see United States v. Villegas, 404 F.3d
355, 359 (5th Cir. 2005), we hold that the district court did not
err in applying the § 2L1.2(b)(1)(B) enhancement because
Cedillos’ North Carolina conviction was punishable by
imprisonment for a term exceeding one year and was therefore a
“felony.” See United States v. Harp, 406 F.3d 242, 246 (4th
Cir.), cert. denied, 126 S. Ct. 297 (2005).
On plain error review, we hold that although the district
court clearly erred in assessing two criminal history points
pursuant to § 4A1.1(c) for sentences imposed more than 10 years
prior to the instant offense, see § 4A1.1(c), comment. (n.3),
Cedillos has failed to carry his burden of establishing that the
error affected his substantial rights. See Villegas, 404 F.3d at
363-64. The district court could, on remand, impose the same
sentence. See United States v. Wheeler, 322 F.3d 823, 828 (5th
Cir 2003). Alternatively, it is not reasonably probable that,
but for the district court’s misapplication of the Guidelines,
Cedillos would have received a lesser sentence because the
correct and incorrect guideline ranges overlap and he did not
receive a sentence substantially greater than would have
otherwise been permitted. See United States v. Garza-Lopez, 410
F.3d 268, 275 (5th Cir.), cert. denied, 126 S. Ct. 298 (2005);
Villegas, 404 F.3d at 364.
No. 06-40097
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Finally, Cedillos’ constitutional challenge is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).
Although Cedillos contends that Almendarez-Torres was incorrectly
decided and that a majority of the Supreme Court would overrule
Almendarez-Torres in light of Apprendi, we have repeatedly
rejected such arguments on the basis that Almendarez-Torres
remains binding. See Garza-Lopez, 410 F.3d at 276. Cedillos
properly concedes that his argument is foreclosed in light of
Almendarez-Torres and circuit precedent, but he raises it here to
preserve it for further review.
AFFIRMED.