United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT February 18, 2004
Charles R. Fulbruge III
Clerk
No. 03-40629
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RODOLFO CARILLO-GALVAN,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. L-02-CR-743-1
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Before HIGGINBOTHAM, EMILIO M. GARZA, and PRADO, Circuit Judges.
PER CURIAM:*
Rodolfo Carillo-Galvan appeals his guilty plea conviction
and sentence for illegal reentry following deportation in
violation of 8 U.S.C. § 1326. Carillo-Galvan concedes that both
of his appellate arguments are foreclosed. He raises the issues
to preserve them for further review.
Carillo-Galvan argues that his prior state felony
convictions for possession of a controlled substance were not
“aggravated felonies” under U.S.S.G. § 2L1.2(b)(1)(C) or 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that this opinion should not be published and is not precedent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.
No. 03-40629
-2-
§ 1101(a)(43)(B). This argument is foreclosed by our decision in
United States v. Caicedo-Cuero, 312 F.3d 697, 706-11 (5th Cir.
2002), cert. denied, 123 S. Ct. 1948 (2003).
Carillo-Galvan also argues that the “felony” and “aggravated
felony” provisions of 8 U.S.C. § 1326(b) are unconstitutional in
light of Apprendi v. New Jersey, 530 U.S. 466 (2000). Carillo-
Galvan’s argument is foreclosed by Almendarez-Torres v. United
States, 523 U.S. 224, 235, 239-47 (1998). Apprendi did not
overrule Almendarez-Torres. See Apprendi, 530 U.S. at 489-90;
United States v. Dabeit, 231 F.3d 979, 984 (5th Cir. 2000).
Therefore, the judgment of the district court is AFFIRMED.