United States v. Lopez-Tovar

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. 04-40391
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE LUIS LOPEZ-TOVAR,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. C-03-CR-341-1
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Before KING, Chief Judge, and DeMOSS and CLEMENT, Circuit Judges.
PER CURIAM:*
Jose Luis Lopez-Tovar (Lopez) pleaded guilty and was
convicted of illegal reentry after deportation. He was sentenced
to 30 months of imprisonment and three years of supervised
release. Lopez contends that the district court erred by
characterizing his state felony conviction for possession of
marijuana as an “aggravated felony” for purposes of U.S.S.G.
§ 2L1.2. This issue, however, is foreclosed by our precedent.
See United States v. Caicedo-Cuero, 312 F.3d 697, 700-06 (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this opinion should not be published and is not precedent except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. 04-40391
-2-
Cir. 2002); United States v. Hinojosa-Lopez, 130 F.3d 691, 693-94
(5th Cir. 1997).
Lopez also argues that the “felony” and “aggravated felony”
provisions of 8 U.S.C. § 1326(a) and (b) are unconstitutional.
He acknowledges that his argument is foreclosed, but he seeks to
preserve the issue for possible Supreme Court review in light of
Apprendi v. New Jersey, 530 U.S. 466 (2000). As Lopez concedes,
this issue is foreclosed. See Almendarez-Torres v. United
States, 523 U.S. 224, 247 (1998); United States v. Dabeit, 231
F.3d 979, 984 (5th Cir. 2000).
Lopez further argues that the Supreme Court’s holding in
Blakely v. Washington, 124 S. Ct. 2531 (2004), should be applied
to sentences determined under the United States Sentencing
Guidelines. As Lopez concedes, this argument is foreclosed by
this court’s recent opinion in United States v. Pineiro, 377 F.3d
464, 465-73 (5th Cir. 2004), petition for cert. filed (U.S. July
14, 2004) (No. 04-5263), but he raises it to preserve it for
possible further review.
AFFIRMED.