United States v. Ramirez-Maldonado

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT August 17, 2005

Charles R. Fulbruge III
Clerk
No. 04-40749
Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

TIMOTEO RAMIREZ-MALDONADO,

Defendant-Appellant.

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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:04-CR-144-ALL
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Before BENAVIDES, CLEMENT, and PRADO, Circuit Judges.

PER CURIAM:*

Timoteo Ramirez-Maldonado (“Ramirez”) appeals his conviction

and sentence for illegal reentry after deportation.

Ramirez argues that the district court erred by imposing the

eight-level increase in U.S.S.G. § 2L1.2(b)(1)(C) (2003) for a

prior aggravated felony conviction. Ramirez contends that his

prior state conviction for possession of a controlled substance

is not a qualifying aggravated felony because it is not a felony

under federal law. Although Ramirez acknowledges that the

*
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this opinion should not be published and is not precedent except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.
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decisions in United States v. Rivera, 265 F.3d 310 (5th Cir.

2001), and United States v. Hinojosa-Lopez, 130 F.3d 691 (5th

Cir. 1997), appear to foreclose this argument, he asserts that

these decisions are not binding because they conflict with Jerome

v. United States, 318 U.S. 101 (1943).

Our precedent is clear that Congress made a “deliberate

policy decision to include as an ‘aggravated felony’ a drug crime

that is a felony under state law but only a misdemeanor under the

[Controlled Substances Act].” United States v. Hernandez-Avalos,

251 F.3d 505, 510 (5th Cir. 2001) (internal quotation marks and

citation omitted). Accordingly, a prior conviction for a state

drug offense will qualify as an aggravated felony under U.S.S.G.

§ 2L1.2(b)(1)(C) if it is punishable under the Controlled

Substances Act and it is punishable by more than a year of

imprisonment under the applicable state law. See United States

v. Sanchez-Villalobos, 412 F.3d 572, 576-77 (5th Cir. 2005).

Ramirez does not dispute that his state offense was punishable

under the Controlled Substances Act or that the offense was a

felony under state law. This argument is meritless.

Ramirez also argues that the “felony” and “aggravated

felony” provisions of 8 U.S.C. § 1326(b)(1) and (2) are

unconstitutional in light of the Supreme Court’s decision in

Apprendi v. New Jersey, 530 U.S. 466 (2000). Ramirez’s argument

is, as he concedes, foreclosed. See Almendarez-Torres v. United

States, 523 U.S. 224 (1998); United States v. Izaguirre-Flores,
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405 F.3d 270, 277-78 (5th Cir. 2005), petition for cert. filed

(July 22, 2005) (No. 05-5469).

Ramirez also contends that his sentence is improper under

Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004), and

United States v. Booker, 125 S. Ct. 738 (2005). He concedes that

the plain-error standard of review applies. Ramirez has not

shown that the district court would have imposed a different

sentence under an advisory sentencing scheme. Thus, Ramirez has

not shown plain error in connection with his sentence. See

United States v. Martinez-Lugo, 411 F.3d 597, 600-01 (5th Cir.

2005).

The judgment of the district court is AFFIRMED.