United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT January 6, 2005
Charles R. Fulbruge III
Clerk
No. 04-20292
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MAURICIO ZELADA-HERNANDEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:03-CR-383-1
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Before DAVIS, SMITH, and DENNIS, Circuit Judges.
PER CURIAM:*
Mauricio Zelada-Hernandez (Zelada) appeals his conviction
and sentence following his guilty-plea to fraud and misuse of an
alien registration card and illegal re-entry of an alien
previously deported after conviction of an aggravated felony.
Zelada contends that the district court plainly erred by applying
the 16-level adjustment in U.S.S.G. § 2L1.2(b)(1)(A)(i) and that
the felony and aggravated felony provisions in 8 U.S.C.
§ 1326(b)(1) & (b)(2) are unconstitutional.
*
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this opinion should not be published and is not precedent except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. 04-20292
-2-
Zelada received the sentence adjustment based on his prior
conviction for selling or furnishing marijuana. Zelada did not
object to the presentence investigation report’s (PSR)
characterization of his offense, and at sentencing, his counsel
admitted that Zelada’s prior conviction was for delivery of
marijuana. The PSR stated that, based on court records, the
conviction stemmed from Zelada’s sale of marijuana to an
undercover police officer. Zelada does not dispute this fact,
but rather argues that his prior conviction was under CAL. HEALTH
& SAFETY CODE § 11360(a) and that a conviction under this statute
does not necessarily meet the definition of “drug trafficking
offense” under § 2L1.2(b)(1)(A)(i). He asserts that the
Government failed to sustain its burden to prove that his prior
conviction qualified for the 16-level adjustment. In particular,
he contends that no evidence outside of the statute of conviction
and charging instrument should have been considered in applying
the adjustment.
We review only for plain error because this argument is
raised for the first time on appeal. See United States v. Diaz-
Diaz, 327 F.3d 410, 412 (5th Cir.), cert. denied, 540 U.S. 889
(2003). It was not plain error for the district court to apply
the adjustment given the information before it and the lack of
any objections or rebuttal evidence. See United States v. Olano,
507 U.S. 725, 731-37 (1993); United States v. Ramirez, 367 F.3d
274, 277 (5th Cir.), cert. denied, 125 S. Ct. 145 (2004).
No. 04-20292
-3-
As Zelada concedes, his assertion that the felony and
aggravated felony provisions in 8 U.S.C. § 1326(b)(1) & (b)(2)
are unconstitutional is foreclosed by Almendarez-Torres v. United
States, 523 U.S. 224, 235 (1998). Likewise, Zelada’s contention
that under Blakely v. Washington, 124 S. Ct. 2531 (2004), his
sentence could not be enhanced based on any prior convictions
unless he admitted to them or they were found by a jury beyond a
reasonable doubt, is foreclosed by United States v. Pineiro, 377
F.3d 464, 465-66 (5th Cir. 2004), petition for cert. filed, (July
14, 2004) (No. 04-5263).
AFFIRMED.