IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-20398
Summary Calendar
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
MOISES TREJO
Defendant - Appellant
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-01-CR-724-ALL
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January 24, 2003
Before KING, Chief Judge, and SMITH and DENNIS, Circuit Judges.
PER CURIAM:*
Moises Trejo appeals his sentence following his guilty-plea
conviction for being an alien unlawfully found in the United
States after deportation, a violation of 8 U.S.C. § 1326. Trejo
first argues that his prior felony conviction for possession of a
controlled substance did not merit the eight-level adjustment
under U.S.S.G. § 2L1.2(b)(1)(C) for an aggravated felony and that
he should have received only the four-level adjustment provided
in § 2L1.2(b)(1)(D) for “any other felony.” Trejo’s arguments
*
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that this opinion should not be published and is not precedent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. 02-20398
-2-
regarding the definitions of “drug trafficking offense” and
“aggravated felony” were recently foreclosed by United States v.
Caicedo-Cuero, 312 F.3d 697, 706-11 (5th Cir. 2002). The
district court thus did not err in assessing an eight-level
adjustment, pursuant to U.S.S.G. § 2L1.2(b)(1)(C). Id.
Trejo also argues that the enhancement provisions of 8
U.S.C. § 1326(b) are unconstitutional. He acknowledges that his
argument is foreclosed by the 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, 530 U.S. 466, 490 (2000). Apprendi did
not overrule Almendarez-Torres. Apprendi, 530 U.S. at 489-90,
496; United States v. Dabeit, 231 F.3d 979, 984 (5th Cir. 2000).
The judgment of the district court is AFFIRMED.