United States v. Trejo-Hernandez

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT December 17, 2004 Charles R. Fulbruge III Clerk No. 04-40518 Conference Calendar

UNITED STATES OF AMERICA, Plaintiff-Appellee,

versus

CESAR TREJO-HERNANDEZ, Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. 1:04-CR-41-ALL --------------------

Before KING, Chief Judge, and DeMOSS and CLEMENT, Circuit Judges.

PER CURIAM:* Cesar Trejo-Hernandez (“Trejo”) entered a guilty plea to a

charge of being present illegally in the United States after

deportation and a conviction for an aggravated felony, a

violation of 8 U.S.C. § 1326 (a) and (b). The district court

sentenced Trejo to thirty-five months of imprisonment and three

years of supervised release.

Trejo asserts that the district court plainly erred by

characterizing his state felony conviction for possession of a * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 04-40518 -2-

controlled substance as an “aggravated felony” for purposes of

U.S.S.G. § 2L1.2(b)(1). Trejo’s argument is foreclosed by

circuit precedent. See United States v. Caicedo-Cuero, 312 F.3d

697, 706-11 (5th Cir. 2002); United States v. Hinojosa-Lopez, 130

F.3d 691, 693-94 (5th Cir. 1997).

Trejo contends that the “felony” and “aggravated felony”

provisions of 8 U.S.C. § 1326 (a) and (b) are unconstitutional.

He asserts that his sentence was imposed in violation of

Apprendi v. New Jersey, 530 U.S. 466, 490 (2000), and Blakely v.

Washington, 124 S. Ct. 2531, 2537 (2004). Trejo acknowledges

that his argument is foreclosed, but he seeks to preserve the

issue for possible Supreme Court review in light of Apprendi, 530

U.S. at 490 . As Trejo concedes, this issue is foreclosed.

See Almendarez-Torres v. United States, 523 U.S. 224, 247 (1998);

United States v. Pineiro, 377 F.3d 464, 465-66 (5th Cir. 2004),

petition for cert. filed (U.S. July 14, 2004) (No. 04-5263);

United States v. Mancia-Perez, 331 F.3d 464, 470 (5th Cir.),

cert. denied, 540 U.S. 935 (2003).

AFFIRMED.