United States v. Carillo-Galvan

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.

--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. L-02-CR-743-1
--------------------

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that this opinion should not be published and is not precedent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.