United States v. Yanez-Govea

* 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this opinion should not be published and is not precedent except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. 04-40078
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAVIER YANEZ-GOVEA,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. L-03-CR-1382-ALL
--------------------
Before JOLLY, JONES, and WIENER, Circuit Judges.
PER CURIAM:*
Javier Yanez-Govea pleaded guilty to one count of illegal
reentry into the United States, and the district court sentenced
him to 18 months’ imprisonment and a three-year term of
supervised release. Yanez contends that the district court erred
by characterizing his prior 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). This issue, however,
is foreclosed by our precedent. See United States v. Caicedo-
Cuero, 312 F.3d 697, 706-11 (5th Cir. 2002), cert. denied, 538

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No. 04-40078
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U.S. 1021 (2003); United States v. Hinojosa-Lopez, 130 F.3d 691,
693-94 (5th Cir. 1997).
Yanez contends that 8 U.S.C. § 1326(b) is unconstitutional
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. As Yanez concedes, 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).
The district court’s judgment is AFFIRMED.

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