IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-20397
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAVIER RAMIREZ-SOSA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-01-CR-722-ALL
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February 20, 2003
Before WIENER, EMILIO M. GARZA, and CLEMENT, Circuit Judges.
PER CURIAM:*
Javier Ramirez-Sosa was convicted after a guilty plea to
illegal reentry into the United States after deportation, in
violation of 8 U.S.C. § 1326. He appeals his conviction and
sentence; finding no error, we affirm.
Ramirez argues that the district court erred by applying
U.S.S.G. § 2L1.2(b)(1)(C) at his sentencing. He argues that his
prior felony conviction for possession of cocaine did not merit
the eight-level adjustment provided in § 2L1.2(b)(1)(C) for an
*
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that this opinion should not be published and is not precedent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. 02-20397
-2-
aggravated felony and that he should have received only the
four-level adjustment provided in § 2L1.2(b)(1)(D) for “any other
felony.” Ramirez’s arguments regarding the definitions of “drug
trafficking offense” and “aggravated felony” for purposes of the
sentencing guidelines were recently rejected by this court in
United States v. Caicedo-Cuero, 312 F.3d 397, 706-11 (5th Cir.
2002).
Ramirez also argues that 8 U.S.C. §§ 1326(b)(1) and (b)(2)
are unconstitutional because they treat a prior conviction for an
aggravated felony as a sentencing factor and not an element of
the offense. Ramirez concedes that this 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 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.
United States v. Ramirez-Sosa
Combined Opinion