United States v. Oliva-Banegas

United States Court of Appeals Fifth Circuit FILED IN THE UNITED STATES COURT OF APPEALS August 18, 2004 FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk No. 03-41534 Conference Calendar UNITED STATES OF AMERICA, Plaintiff-Appellee, versus OSCAR OLIVA-BANEGAS, Defendant-Appellant. -------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. L-03-CR-880-1 -------------------- Before HIGGINBOTHAM, DAVIS, and PICKERING, Circuit Judges. PER CURIAM:* Oscar Oliva-Banegas (Oliva) pleaded guilty to one count of illegal reentry into the United States, and the district court sentenced him to 30 months in prison and a three-year term of supervised release. Oliva contends that the district court erred by characterizing his state felony conviction for simple possession of a controlled substance as an “aggravated felony” for purposes of U.S.S.G. § 2L1.2(b)(1)(C). This issue, however, is foreclosed by our precedent. See United States v. Caicedo- Cuero, 312 F.3d 697, 706-11 (5th Cir. 2002), cert. denied, 538 * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 03-41534 -2- U.S. 1021 (2003); United States v. Hinojosa-Lopez, 130 F.3d 691, 693-94 (5th Cir. 1997). Oliva contends that 8 U.S.C. § 1326(b) is unconstitutional because it does not require the fact of a prior felony or aggravated felony conviction to be charged in the indictment and proved beyond a reasonable doubt. This argument is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224 (1998). See United States v. Dabeit, 231 F.3d 979, 984 (5th Cir. 2000). The district court’s judgment is AFFIRMED.