United States v. Aguilera-Guerrero

* 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this opinion should not be published and is not precedent except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.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 03-41713
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SANTIAGO AGUILERA-GUERRERO,
also known as Ernesto Rangel,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. M-03-CR-789-1
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Before BARKSDALE, DeMOSS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Santiago Aguilera-Guerrero appeals the sentence imposed
following his guilty-plea conviction for being found in the
United States following deportation subsequent to an aggravated
felony conviction, a violation of 8 U.S.C. § 1326. Aguilera
raises two issues that he concedes are foreclosed, but he seeks
to preserve them for further review.
Aguilera argues for the first time on appeal that his prior
conviction for possession of a controlled substance should not be
United States Court of Appeals
Fifth Circuit
F I L E D
June 23, 2004
Charles R. Fulbruge III
Clerk

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No. 03-41713
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considered an “aggravated felony” under U.S.S.G. § 2L1.2(b)(1)(C).
This argument is foreclosed by our decision in United States
v. Caicedo-Cuero, 312 F.3d 697, 705-711 (5th Cir. 2002),
cert. denied, 538 U.S. 1021 (2003).
Also for the first time on appeal, Aguilera argues that
the “felony” and “aggravated felony” provisions of 8 U.S.C.
§ 1326(b)(1) and (2) are unconstitutional in view of Apprendi v.
New Jersey, 530 U.S. 466 (2000). He concedes that this argument
is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224
(1998), but states that he is raising it to preserve it for
further review. Apprendi did not overrule Almendarez-Torres.
United States v. Hernandez-Avalos, 251 F.3d 505, 507 & n.1
(5th Cir. 2001). We must follow Almendarez-Torres until the
Supreme Court overrules it. Id.
AFFIRMED.

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