United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT August 28, 2006
Charles R. Fulbruge III
Clerk
No. 05-40980
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ENRIQUE QUESADA-LERMA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:05-CR-7-ALL
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Before DAVIS, SMITH, and WIENER, Circuit Judges.
PER CURIAM:*
Enrique Quesada-Lerma (Quesada) appeals his guilty plea
conviction and sentence for possession with intent to distribute
marijuana. Quesada argues (1) his sentence contravened United
States v. Booker, 543 U.S. 220 (2005), and, (2) for the first
time on appeal, that his count three conviction should be
overturned because the statute cited in the indictment, 21 U.S.C.
§ 841(b)(1)(C), purportedly does not criminalize the charged
conduct.
*
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this opinion should not be published and is not precedent except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. 05-40980
-2-
Quesada’s contention that the district court was precluded
from enhancing his sentence based on facts that had not been
either admitted by him or found beyond a reasonable doubt by a
jury is untenable. Post-Booker “[t]he sentencing judge is
entitled to find by a preponderance of the evidence all the facts
relevant to the determination of a Guideline sentencing range and
all facts relevant to the determination of a non-Guidelines
sentence.” United States v. Mares, 402 F.3d 511, 519 (5th Cir.),
cert. denied, 126 S. Ct. 43 (2005).
Quesada’s guilty plea renders his defective indictment claim
waived because “[a] voluntary guilty plea waives all
nonjurisdictional defects in the proceedings against the
defendant,” United States v. Glinsey, 209 F.3d 386, 392 (5th Cir.
2000), and an allegedly defective indictment does not deprive a
district court of jurisdiction. United States v. Cotton, 535
U.S. 625, 631 (2002).
AFFIRMED.