United States v. Galvez

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT July 9, 2004 Charles R. Fulbruge III Clerk No. 03-41696 Summary Calendar UNITED STATES OF AMERICA, Plaintiff-Appellee, versus JORGE ANIBAL GALVEZ, Defendant-Appellant. -------------------- Appeal from the United States District Court for the Southern District of Texas No. B-03-CR-475-1 -------------------- Before SMITH, DeMOSS, and STEWART, Circuit Judges. PER CURIAM:* Jorge Galvez appeals his guilty-plea conviction and sentence for illegal reentry following deportation. He first argues that the district court erred in finding that his prior state misde- meanor conviction for sexual abuse of a person under fourteen qual- * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circum- stances set forth in 5TH CIR. R. 47.5.4. No. 03-41696 -2- ified as an aggravated felony under 8 U.S.C. § 1101(a)(43)(A) and erred in increasing his offense level by eight pursuant to U.S.S.G. § 2L1.2(b)(1)(C). We have reviewed the record and briefs and conclude that the district court did not err in applying the eight-level increase, because Galvez’s state sexual abuse conviction qualified as an ag- gravated felony under § 1101(a)(43)(A). See United States v. Urias-Escobar, 281 F.3d 165, 166-68 (5th Cir.), cert. denied, 536 U.S. 913 (2002). Galvez argues next that the “felony” and “aggravated felony” provisions found at 8 U.S.C. § 1326(a) and (b) are unconstitutional sentencing provisions. He acknowledges that his argument is fore- closed, but he seeks to preserve the issue for possible Supreme Court review in light of Apprendi v. New Jersey, 530 U.S. 466 (2000). As Galvez concedes, this issue is foreclosed. See Almen- darez-Torres v. United States, 523 U.S. 224, 247 (1998); United States v. Dabeit, 231 F.3d 979, 984 (5th Cir. 2000). AFFIRMED.