United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS April 17, 2003
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 02-20971
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DOMINGO OSCAR CRUZ-RESENDIZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-02-CR-62-1
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Before BARKSDALE, DeMOSS, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Domingo Oscar Cruz-Resendiz (“Cruz-Resendiz”) appeals his
conviction and 30-month sentence imposed following his plea of
guilty to a charge of being found in the United States after
deportation, a violation of 8 U.S.C. § 1326. Finding no error, we
affirm the district court’s judgment.
Cruz-Resendiz contends that his prior state felony conviction
for possession of a controlled substance is not an “aggravated
felony” for purposes of U.S.S.G. § 2L1.2(b)(1)(C) and 8 U.S.C.
*
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this opinion should not be published and is not precedent except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.
§ 1101(a)(43)(B). He concedes that his argument is foreclosed by
this court’s decision in United States v. Caicedo-Cuero, 312 F.3d
697, 706-11 (5th Cir. 2002) (holding that possession of a
controlled substance is an “aggravated felony” for purposes of
8 U.S.C. § 1326(b)(2) and U.S.S.G. § 2L1.2 (2001)), and raises the
issue only to preserve it for possible Supreme Court review.
Cruz-Resendiz also argues that the felony conviction that
resulted in his increased sentence under 8 U.S.C. § 1326(b)(2) was
an element of the offense that should have been charged in the
indictment. He acknowledges that his argument is foreclosed by the
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 the light of the decision in 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). Cruz-Resendiz’s argument is foreclosed. The
judgment of the district court is AFFIRMED.
2