United States v. Vega-Alvarado ( 2003 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-50531
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ISMAEL VEGA-ALVARADO,
also known as Jose Luis Medina-Perez,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. EP-01-CR-2208-ALL-DB
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February 20, 2003
Before WIENER, EMILIO M. GARZA, and CLEMENT, Circuit Judges.
PER CURIAM:*
Ismael Vega-Alvarado pleaded guilty to illegal reentry into
the United States after deportation in violation of 8 U.S.C.
§ 1326. He appeals the district court’s interpretation of
U.S.S.G. § 2L1.2(b)(1)(C) at his sentencing. Vega-Alvarado
argues for the first time on appeal that his prior felony
conviction for possession of a controlled substance did not merit
the eight-level adjustment provided in U.S.S.G. § 2L1.2(b)(1)(C)
for an aggravated felony. He argues that he should have
*
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that this opinion should not be published and is not precedent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. 02-50531
-2-
received only the four-level adjustment provided in
U.S.S.G. § 2L1.2(b)(1)(D) for “any other felony.” Vega-
Alvarado’s arguments regarding the definitions of “drug
trafficking offense” and “aggravated felony” are foreclosed by
United States v. Caicedo-Cuero, 312 F.3d 697, 706-11 (5th Cir.
2002). The district court did not err in assessing an eight-
level adjustment, pursuant to U.S.S.G. § 2L1.2(b)(1)(C), to
Vega-Alvarado’s sentencing guideline calculation.
Vega-Alvarado also argues for the first time on appeal that
8 U.S.C. § 1326(b)(2) is unconstitutional because it treats a
prior conviction for an aggravated felony as a mere sentencing
factor and not an element of the offense. Vega-Alvarado concedes
that his argument is foreclosed by Almendarez-Torres v. United
States, 523 U.S. 224 (1998), but he seeks to preserve the issue
for Supreme Court review in light of the decision in Apprendi
v. New Jersey, 530 U.S. 466 (2000). Apprendi did not overrule
Almendarez-Torres. See Apprendi, 530 U.S. at 489-90; see also
United States v. Dabeit, 231 F.3d 979, 984 (5th Cir. 2000).
Accordingly, this argument lacks merit.
AFFIRMED.