United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT April 21, 2004
Charles R. Fulbruge III
Clerk
No. 03-40660
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RAMIRO MATEO-ROJAS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. L-03-CR-121-ALL
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Before JOLLY, JONES, and SMITH, Circuit Judges.
PER CURIAM:*
Ramiro Mateo-Rojas appeals his sentence following a guilty
plea conviction for attempted illegal reentry after deportation,
a violation of 8 U.S.C. § 1326. Mateo-Rojas first argues that
the district court erred by characterizing his prior state felony
conviction for possession of cocaine as an aggravated felony for
purposes of U.S.S.G. § 2L1.2(b)(1)(C). Under any standard of
review, we conclude that this issue is foreclosed by our
precedent. This court has held that a state felony conviction
*
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that this opinion should not be published and is not precedent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. 03-40660
-2-
for simple drug possession qualifies as an aggravated felony
even if that offense would be a misdemeanor under federal law.
See United States v. Caicedo-Cuero, 312 F.3d 697, 706-11
(5th Cir. 2002), cert. denied, 123 S. Ct. 1948 (2003); United
States v. Hinojosa-Lopez, 130 F.3d 691, 693-94 (5th Cir. 1997).
Mateo-Rojas argues that, pursuant to Apprendi v. New Jersey,
530 U.S. 466 (2000), the “felony” and “aggravated felony”
provisions of 8 U.S.C. § 1326(b)(1) and (2) are unconstitutional
because they are elements of the offense and not sentencing
enhancements. Mateo-Rojas concedes that this argument is
foreclosed by Almendarez-Torres v. United States, 523 U.S. 224
(1998), but he raises it for possible Supreme Court review.
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). This court must follow the precedent set in
Almendarez-Torres “unless and until the Supreme Court itself
determines to overrule it.” Dabeit, 231 F.3d at 984 (internal
quotation and citation omitted).
Mateo-Rojas also asserts there is an error in the judgment.
Because the district court has corrected this error, this issue
is moot.
AFFIRMED.