United States v. Huitron , 173 F. App'x 340 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
March 24, 2006
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 05-10359
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ALFONSO HUITRON, agent of Jose Alfredo Cuestas,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:04-CR-161-ALL
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Before JONES, Chief Judge, and WIENER and DeMOSS, Circuit Judges.
PER CURIAM:*
Alfonso Huitron appeals his guilty-plea conviction and
sentence for being illegally present in the United States following
removal. Huitron’s constitutional challenge to 8 U.S.C. § 1326 is
foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235
(1998). Although Huitron contends that Almendarez-Torres was
incorrectly decided and that a majority of the Supreme Court would
overrule Almendarez-Torres in light of Apprendi v. New Jersey,
*
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opinion should not be published and is not precedent except under the limited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.
530 U.S. 466 (2000), and its progeny, we have repeatedly rejected
such arguments on the basis that Almendarez-Torres remains binding.
See United States v. Garza-Lopez, 410 F.3d 268, 276 (5th Cir.),
cert. denied, 126 S. Ct. 298 (2005). Huitron 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.
For the first time on appeal, Huitron argues that the district
court plainly erred by applying a 16-level sentence enhancement
pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(i). Because Huitron did not
raise this issue below, we review for plain error. See United
States v. Hull, 160 F.3d 265, 271 (5th Cir. 1998). Contrary to
Huitron’s contention, his prior conviction for distribution of
cocaine was in federal court, not state court. All of the offenses
contained in 21 U.S.C. § 841(a), which criminalizes the
distribution of cocaine, are drug trafficking offenses under
§ 2L1.2(b)(1)(A)(i). Compare § 841(a) with § 2L1.2 comment.
(n.(1)(B)(iv)). Thus, while the district court may have erred by
relying upon the description of the facts underlying Huitron’s
prior conviction in the presentence report, see United States v.
Garza-Lopez, 410 F.3d 268, 273-274 (5th Cir. 2005), Huitron cannot
establish plain error because his prior conviction does support the
enhancement. See United States v. Martinez-Cortez, 988 F.2d 1408,
1415-16 & n.37 (5th Cir. 1993).
2
AFFIRMED.
3