United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT December 10, 2004
Charles R. Fulbruge III
Clerk
No. 04-40045
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GEORGE ALBERTO VARELA-MEDINA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:03-CR-1319-ALL
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Before DAVIS, SMITH and DENNIS, Circuit Judges
PER CURIAM:*
George Alberto Varela-Medina (“Varela”) appeals the sentence
imposed following his guilty-plea conviction for illegal reentry
following deportation, in violation of 8 U.S.C. § 1326. He
argues that the district court erred in imposing a 12-point
enhancement, pursuant to U.S.S.G. § 2L1.2(b)(1)(B), based on the
determination that his prior felony conviction under California
Health and Safety Code § 11352(a) was a “drug-trafficking
offense” within the meaning of the guideline. Varela contends
*
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this opinion should not be published and is not precedent except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. 04-40045
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that the statute of conviction is overly broad, criminalizing
behavior such as simple possession, and cannot support the
enhancement under U.S.S.G. § 2L1.2(b)(1)(B). To the extent that
Varela seeks reversal of his sentence based on a categorical
rejection of a § 11352(a) offense as a “drug-trafficking offense”
for purposes of U.S.S.G. § 2L1.2(b)(1)(B), his argument is
without merit. See United States v. Rodriguez-Duberney, 326 F.3d
613, 617 (5th Cir.), cert. denied, 124 S. Ct. 259 (2003).
Because Varela did not object in the district court to the
legal sufficiency of the PSR to sustain the enhancement, review
as to this issue is for plain error only. See United States v.
Calverley, 37 F.3d 160, 162-64 (5th Cir. 1994)(en banc). Even if
the district court erred in relying on the legally inadequate PSR
to sustain the enhancement, Varela cannot show that the error
affected his substantial rights so as to establish plain error
because the uncontested record evidence demonstrates that his
prior conviction was for selling cocaine; the record lacks any
evidence that he merely possessed cocaine. Cf. United States v.
Martinez-Cortez, 988 F.2d 1408, 1416 & n.37 (5th Cir. 1993).
Varela additionally contends, also for the first time on
appeal, that the “felony” and “aggravated felony” provisions of
8 U.S.C. § 1326(b)(1) and (2) are unconstitutional in the light
of Apprendi v. New Jersey, 530 U.S. 466 (2000), and Blakely v.
Washington, 124 S. Ct. 2531 (2004). He concedes that his
argument is foreclosed by Almendarez-Torres v. United States, 523
No. 04-40045
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U.S. 224, 239-47 (1998), but he seeks to preserve 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). Inasmuch as Varela argues that Blakely
invalidates the Sentencing Guidelines, his argument is
foreclosed. See United States v. Pineiro, 377 F.3d 464, 465-66
(5th Cir. 2004), petition for cert. filed (July 14, 2004) (No.
04-5263).
The district court’s judgment is AFFIRMED.