United States v. Cerda-Esquivel

* 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that this opinion should not be published and is not precedent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. 02-20407
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RUFINO CERDA-ESQUIVEL,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-01-CR-848-ALL
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February 20, 2003
Before WIENER, EMILIO M. GARZA, and CLEMENT, Circuit Judges.
PER CURIAM:*
Rufino Cerda-Esquivel was convicted after a guilty plea to
illegal reentry into the United States after deportation, in
violation of 8 U.S.C. § 1326, and was sentenced to 24 months’
imprisonment. He argues that his prior felony conviction for
possession of cocaine did not merit the district court’s
eight-level adjustment as provided in § 2L1.2(b)(1)(C) for an
aggravated felony. Cerda’s arguments regarding the definitions
of “drug trafficking offense” and “aggravated felony” for

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No. 02-20407
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purposes of the sentencing guidelines were recently rejected
by this court in United States v. Caicedo-Cuero, 312 F.3d 697,
706-707 (5th Cir. 2002).
Cerda also argues that drug possession is not an aggravated
felony under 8 U.S.C. §§ 1101(a)(43)(B) and 1326(b)(2), but he
concedes that his argument is foreclosed by our precedent in
United States v. Rivera, 265 F.3d 310 (5th Cir. 2001), cert.
denied, 534 U.S. 1146 (2002), and United States v. Hinojosa-
Lopez, 130 F.3d 691 (5th Cir. 1997), and he raises the issue
only to preserve it for possible Supreme Court review.
Based on the foregoing, the district court did not err in
assessing an eight-level adjustment.
AFFIRMED.

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