United States v. Rangel-Rendon

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. 04-40010
Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

AARON RANGEL-RENDON,

Defendant-Appellant.

--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. L-03-CR-1184-ALL
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Before HIGGINBOTHAM, DAVIS, and PICKERING, Circuit Judges.

PER CURIAM:*

Aaron Rangel-Rendon (Rangel-Rendon) pleaded guilty to one

count of illegal reentry into the United States, and the district

court sentenced him to 24 months’ imprisonment and a three-year

term of supervised release. Rangel-Rendon contends that the

district court erred by characterizing his state felony

conviction for 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),

*
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this opinion should not be published and is not precedent except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. 04-40010
-2-

cert. denied, 538 U.S. 1021 (2003); United States v. Hinojosa-

Lopez, 130 F.3d 691, 693-94 (5th Cir. 1997).

Rangel-Rendon 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. As Rangel-

Rendon concedes, 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.