United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT December 15, 2005
Charles R. Fulbruge III
Clerk
No. 04-41516
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GERARDO FIGUEROA-CASTRO, true name
Gerardo Alfonso Castro-Godinez, also known as
Gerardo Godinez-Castro, also known as
Alfonso Castro-Godines
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:04-CR-1016-ALL
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Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges
PER CURIAM:*
Gerardo Figueroa-Castro appeals his sentence under 8 U.S.C. §
1326 for illegal re-entry into the United States after having been
deported. First, Figueroa asserts that the district court erred in
concluding that his prior state felony conviction for simple
possession of cocaine was an “aggravated felony” for purposes of 8
U.S.C. § 1326(b). Our precedent holds that a state felony
conviction for simple drug possession is properly considered an
*
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this opinion should not be published and is not precedent except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. 04-41516
-2-
aggravated felony for purposes of § 1326(b). See United States v.
Rivera, 265 F.3d 310, 312-13 (5th Cir. 2001); United States v.
Hinojosa-Lopez, 30 F.3d 691, 693-94 (5th Cir. 1997). Accordingly,
this issue is foreclosed.
Second, Figueroa asserts that the “felony” and “aggravated
felony” provisions of 8 U.S.C. § 1326(b) are unconstitutional.
The Supreme Court’s decision in Almendarez-Torres v. United States,
523 U.S. 224, 235 (1998), controls this issue. We must follow
Almendarez-Torres “unless and until the Supreme Court itself
determines to overrule it.” United States v. Dabeit, 231 F.3d 979,
984 (5th Cir. 2000) (internal quotation and citation omitted).
This issue is also foreclosed.
The district court’s judgment is AFFIRMED.