IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-20680
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROGELIO RODRIGUEZ-CASTILLO,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-01-CR-912-1
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March 12, 2003
Before JONES, STEWART and DENNIS, Circuit Judges.
PER CURIAM:*
Rogelio Rodriguez-Castillo (“Rodriguez”) appeals his
guilty-plea conviction for illegal reentry, in violation of
8 U.S.C. § 1326, and resulting 27-month sentence. He renews his
argument 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this opinion should not be published and is not precedent except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. 02-20680
-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.” Rodriguez’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, 699-706 (5th Cir.
2002. Rodriguez’s argument that drug possession is not an
aggravated felony under 8 U.S.C. §§ 1101(a)(43)(B) and 1326(b)(2)
is foreclosed by our precedent in United States v. Rivera, 265 F.3d
310 (5th Cir. 2001), cert. denied, 534 U.S. 1146 (2002), and United
States v. Hinojosa-Lopez, 130 F.3d 691 (5th Cir. 1997). Thus, the
district court did not err in assessing an eight-level adjustment.
Rodriguez also argues for the first time on appeal that, in
light of Apprendi v. New Jersey, 530 U.S. 466 (2000), 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. This argument is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224 (1998). 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.