IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
November 11, 2009
No. 09-50164
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
LORENA PORRAS-RASCON, Lorena Porras De Ruiz,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:08-CR-2797-1
Before REAVLEY, GARZA, and OWEN, Circuit Judges.
PER CURIAM:*
Lorena Porras-Rascon (Porras) appeals the sentence imposed following her
guilty plea to illegal reentry. She argues for the first time on appeal that the
district court improperly enhanced her sentence pursuant to U.S.S.G.
§ 2L1.2(b)(1)(A)(i) by relying solely on the presentence report’s characterization
of her prior 21 U.S.C. § 952 conviction for importation of marijuana as a drug
trafficking crime and its own recollection of that conviction. Because Porras did
*
Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
No. 09-50164
not object to the § 2L1.2 enhancement on this basis in the district court, her
argument is reviewed for plain error only. See United States v. Mares, 402 F.3d
511, 520 (5th Cir. 2005). Porras, however, has not established reversible plain
error because she has demonstrated no prejudice from the district court’s alleged
error; thus, she cannot show that her substantial rights have been affected. See
id. at 520-21.
In light of Apprendi v. New Jersey, 530 U.S. 466 (2000), Porras also
challenges the constitutionality of 8 U.S.C. § 1326(b)’s treatment of prior felony
and aggravated felony convictions as sentencing factors rather than elements of
the offense that must be found by a jury. This argument is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998); United States
v. Pineda-Arrellano, 492 F.3d 624, 625 (5th Cir. 2007).
AFFIRMED.
2