United States v. Cordova-Barraza , 254 F. App'x 347 ( 2007 )


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  •           IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT United States Court of Appeals
    Fifth Circuit
    FILED
    November 13, 2007
    No. 07-10527
    Summary Calendar               Charles R. Fulbruge III
    Clerk
    UNITED STATES OF AMERICA
    Plaintiff-Appellee
    v.
    JORGE ALBERTO CORDOVA-BARRAZA
    Defendant-Appellant
    Appeal from the United States District Court
    for the Northern District of Texas
    USDC No. 3:06-CR-353-ALL
    Before REAVLEY, SMITH, and BARKSDALE, Circuit Judges.
    PER CURIAM:*
    Jorge Alberto Cordova-Barraza pleaded guilty to one charge of illegal
    reentry into the United States, and the district court sentenced him to serve
    46 months in prison. Cordova-Barraza appeals his sentence. He argues that the
    district court plainly erred by determining that his prior conviction under
    
    21 U.S.C. § 841
    (a)(1) was for a drug trafficking offense and by sentencing him
    in accordance with this determination. Cordova-Barraza argues that his prior
    conviction does not qualify as a drug trafficking offense as that term is used in
    *
    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    should not be published and is not precedent except under the limited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. 07-10527
    U.S.S.G. § 2L1.2(b)(1)(A)(i). We disagree. A comparison of the statute and
    Guideline at issue shows that a conviction under § 841(a)(1) qualifies as a drug
    trafficking offense under § 2L1.2(b)(1)(A)(i). See § 841(a)(1), § 2L1.2, comment.
    (n.1(B)(iv)). Cordova-Barraza’s argument to the contrary is unavailing.
    In light of Apprendi v. New Jersey, 
    530 U.S. 466
     (2000), Cordova-Barraza
    challenges the constitutionality of § 1326(b)’s treatment of prior felony and
    aggravated felony convictions as sentencing factors rather than elements of the
    offense that must be found by a jury. This court has held that this issue is “fully
    foreclosed from further debate.” United States v. Pineda-Arrellano, 
    492 F.3d 624
    , 625 (5th Cir. 2007), petition for cert. filed (Aug. 28, 2007) (No. 07-6202).
    The judgment of the district court is AFFIRMED.
    2
    

Document Info

Docket Number: 07-10527

Citation Numbers: 254 F. App'x 347

Judges: Barksdale, Per Curiam, Reavley, Smith

Filed Date: 11/13/2007

Precedential Status: Non-Precedential

Modified Date: 8/2/2023