United States v. Larios-Andrade

* 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this opinion should not be published and is not precedent except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.
United States Court of Appeals
Fifth Circuit
F I L E D
October 21, 2004
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 04-40170
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FRANKLIN ISMAEL LARIOS-ANDRADE,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:03-CR-1592-1
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Before JOLLY, JONES, and WIENER, Circuit Judges.
PER CURIAM:*
Franklin Ismael Larios-Andrade appeals his conviction and
sentence for illegal reentry following deportation. He argues
that the district court erred by characterizing his state felony
conviction for possession of a controlled substance as an
“aggravated felony” for purposes of U.S.S.G. § 2L1.2(b)(1)(C) and
8 U.S.C. § 1101(a)(43)(B), when that same offense was punishable
only as a misdemeanor under federal law. This issue, however, is

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No. 04-40170
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foreclosed by United States v. Caicedo-Cuero, 312 F.3d 697,
706-11 (5th Cir. 2002), cert. denied, 538 U.S. 1021 (2003), and
United States v. Hinojosa-Lopez, 130 F.3d 691, 694 (5th Cir.
1997).
Larios-Andrade also argues that the “felony” and “aggravated
felony” provisions of 8 U.S.C. § 1326(b) are unconstitutional in
light of Apprendi v. New Jersey, 530 U.S. 466 (2000). He
acknowledges that his argument is foreclosed, but seeks to
preserve the issue for possible Supreme Court review. As Larios-
Andrade concedes, this issue is foreclosed. See Almendarez-
Torres v. United States, 523 U.S. 224, 247 (1998); United States
v. Dabeit, 231 F.3d 979, 984 (5th Cir. 2000).
AFFIRMED.

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