United States v. Damian-Garcia

* 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this opinion should not be published and is not precedent except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. 03-41320
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MANUEL DAMIAN-GARCIA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. L-03-CR-774-ALL
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Before BARKSDALE, DeMOSS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Manuel Damian-Garcia pleaded guilty to one count of illegal
reentry into the United States, and the district court sentenced
him to 36 months in prison and a three-year term of supervised
release. Damian-Garcia argues that the district court erred by
characterizing his state felony conviction for simple possession
of cocaine as an “aggravated felony” for purposes of U.S.S.G.
§ 2L1.2(b)(1)(C), when that same offense is punishable only as a
misdemeanor under federal law. This issue, however, is
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. 03-41320
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foreclosed by our precedent. See United States v. Caicedo-Cuero,
312 F.3d 697, 706-11 (5th Cir. 2002), cert. denied, 538 U.S. 1021
(2003); United States v. Hinojosa-Lopez, 130 F.3d 691, 693-94
(5th Cir. 1997). Damian-Garcia has not shown that the district
court erred by characterizing his state conviction as an
aggravated felony for U.S.S.G. § 2L1.2(b)(1)(C) purposes and by
sentencing him accordingly.
Damian-Garcia argues that 8 U.S.C. § 1326(b) is
unconstitutional on its face and as applied in his case because
it does not require the fact of a prior felony or aggravated
felony conviction to be charged in the indictment and proved
beyond a reasonable doubt. This argument is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224 (1998). See
United States v. Dabeit, 231 F.3d 979, 984 (5th Cir. 2000).
Damian-Garcia has shown no error in the district court’s
judgment. Accordingly, that judgment is AFFIRMED.

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