United States v. Mundo-Jimenez

* 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that this opinion should not be published and is not precedent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. 02-20646
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MIGUEL ANGEL MUNDO-JIMENEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-01-CR-651-1
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February 20, 2003
Before WIENER, EMILIO M. GARZA, and CLEMENT, Circuit Judges.
PER CURIAM:*
Miguel Angel Mundo-Jimenez pleaded guilty to illegal
reentry into the United States after deportation in violation of
8 U.S.C. § 1326. Mundo-Jimenez appeals the district court’s
interpretation of U.S.S.G. § 2L1.2(b)(1)(C) at his sentencing.
For the first time on appeal, Mundo-Jimenez argues that
8 U.S.C. § 1326(b)(2) is unconstitutional because it treats a
prior conviction for an aggravated felony as a mere sentencing
factor and not an element of the offense. He contends that the

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No. 02-20646
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unconstitutionality of the statute is not remedied by treating
the prior aggravated felony as an element of the offense and
including it in the indictment. Mundo-Jimenez concedes that his
argument is foreclosed by Almendarez-Torres v. United States,
523 U.S. 224 (1998), but he seeks to preserve the issue for
Supreme Court review in light of the decision in Apprendi v.
New Jersey, 530 U.S. 466 (2000). Apprendi did not overrule
Almendarez-Torres. See Apprendi, 530 U.S. at 489-90; see also
United States v. Dabeit, 231 F.3d 979, 984 (5th Cir. 2000).
This argument lacks merit.
Mundo-Jimenez also argues that his prior felony conviction
for possession of a controlled substance did not merit the eight-
level adjustment provided in U.S.S.G. § 2L1.2(b)(1)(C) for an
aggravated felony. He argues that he should have received only
the four-level adjustment provided in U.S.S.G. § 2L1.2(b)(1)(D)
for “any other felony.” Mundo-Jimenez’s arguments regarding the
definitions of “drug trafficking offense” and “aggravated felony”
are foreclosed by United States v. Caicedo-Cuero, 312 F.3d 697,
706-11 (5th Cir. 2002). The district court did not err in
assessing an eight-level adjustment, pursuant to U.S.S.G.
§ 2L1.2(b)(1)(C), to Mundo-Jimenez’s sentencing guideline
calculation.
AFFIRMED.

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