IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-40756 c/w 00-40830
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SANTOS CEJA-CAMPOS,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC Nos. L-00-CR-127-1 &
L-00-CR-26-1
00-CR-26-ALL
--------------------
April 12, 2001
Before JOLLY, HIGGINBOTHAM, and JONES, Circuit Judges.
PER CURIAM:*
In this consolidated appeal, Santos Ceja-Campos appeals his
guilty-plea convictions and sentences for attempted illegal
reentry following deportation and possession with the intent to
distribute marijuana.
Ceja-Campos first argues that a prior felony conviction is
an element of the offense under 8 U.S.C. § 1326 that must be
alleged in the indictment rather than a sentencing factor. Ceja-
Campos acknowledges that his argument is foreclosed by the
*
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that this opinion should not be published and is not precedent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. 00-40756 c/w 00-40830
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Supreme Court’s decision in 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, 120 S. Ct. 2348 (2000). Apprendi did not overrule
Almendarez-Torres. See Apprendi, 120 S. Ct. at 2362; United
States v. Dabeit, 231 F.3d 979, 984 (5th Cir. 2000), cert.
denied, 121 S. Ct. 1214 (2001).
Ceja-Campos also challenges the 16-level increase to his
base offense level for attempted illegal reentry pursuant to
U.S.S.G. § 2L1.2(b)(1)(A). Ceja-Campos’s argument that his Texas
conviction for possession of cocaine does not qualify as an
“aggravated felony” for purposes of U.S.S.G. § 2L1.2 is
foreclosed by our decision in United States v. Hinojosa-Lopez,
130 F.3d 691, 693-94 (5th Cir. 1997). Ceja-Campos argues that
this issue is not foreclosed by Hinojosa-Lopez because he raises
it as a rule-of-lenity argument. “The rule of lenity . . .
applies only when, after consulting traditional canons of
statutory construction, [a court is] left with an ambiguous
statute.” United States v. Shabani, 513 U.S. 10, 17 (1994)
(emphasis added). It follows from our decision in Hinojosa-Lopez
that the term “aggravated felony” is not so ambiguous as to
require an application of the rule of lenity. See Hinojosa-
Lopez, 130 F.3d at 693-94.
Ceja-Campos does not assign any error to his guilty-plea
conviction and sentence stemming from the possession-with-intent-
to-distribute charge. Thus, he has abandoned any challenge to
his conviction and sentence for possession with intent to
No. 00-40756 c/w 00-40830
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distribute marijuana. See Yohey v. Collins, 985 F.2d 222, 224-25
(5th Cir. 1993). The judgment of the district court is affirmed.
AFFIRMED.