United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS July 10, 2003
FOR THE FIFTH CIRCUIT Charles R. Fulbruge III
Clerk
No. 02-41709
Summary Calendar
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
JOSE LUIS MORALES-FRANCO
Defendant - Appellant
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. L-02-CR-740-ALL
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Before KING, Chief Judge, and WIENER and CLEMENT, Circuit Judges.
PER CURIAM:*
Jose Luis Morales-Franco pled guilty to a charge of being
found unlawfully present in the United States after having been
deported following convicted for a felony in violation of 8
U.S.C. § 1326(a) and (b)(1). He appeals his sentence, arguing
that the district court lacked a proper basis for determining
that his underlying conviction was a drug trafficking offense for
purposes of U.S.S.G. § 2L1.2(b)(1)(A). However, the abstract of
*
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that this opinion should not be published and is not precedent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. 02-41709
-2-
judgment relied upon by the district court reflected that
Morales-Franco was convicted of selling marijuana. In the
absence of any evidence to the contrary, the preponderance of the
evidence supported the assessment of the sentencing enhancement.
See United States v. Herrera-Solorzano, 114 F.3d 48, 50 (5th Cir.
1997).
As Morales-Franco concedes, his second argument is
foreclosed by Almendarez-Torres v. United States, 523 U.S. 224
(1998). In the absence of any convincing argument, the sentence
imposed by the district court is AFFIRMED.