United States v. Rostro-Morales

* 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that this opinion should not be published and is not precedent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
June 25, 2003
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-21260
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARTIN ROSTRO-MORALES,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-02-CR-257-ALL
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Before DeMOSS, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
Martin Rostro-Morales (“Rostro”) appeals his guilty-plea
conviction and sentence for being found in the United States
without permission, following deportation, in violation of
8 U.S.C. § 1326. Rostro concedes that his appellate arguments
are foreclosed. He nevertheless raises two issues to preserve
them for possible further review.
Rostro renews his argument that the district court erred
in determining that his prior state felony conviction for

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No. 02-21260
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possession of cocaine was a “drug trafficking crime” under
8 U.S.C. § 1101(a)(43)(B) and thus an “aggravated felony”
which warranted an eight-level increase in his base offense
level under U.S.S.G. § 2L1.2(b)(1)(C) and 8 U.S.C. § 1326(b)(2).
Rostro’s argument regarding the definitions of “drug trafficking
crime” and “aggravated felony” is foreclosed by United States
v. Caicedo-Cuero, 312 F.3d 697, 706-11 (5th Cir. 2002), cert.
denied, 123 S. Ct. 1948 (2003). Accordingly, the district
court did not err in determining that his prior conviction was
an “aggravated felony” under U.S.S.G. § 2L1.2(b)(1)(C).
Rostro also argues, for the first time on appeal, that
8 U.S.C. § 1326(b) is unconstitutional because it treats a prior
conviction for a felony or aggravated felony as a sentencing
factor and not as an element of the offense. Rostro’s argument
is foreclosed by Almendarez-Torres v. United States, 523 U.S.
224, 235, 239-47 (1998). The Supreme Court did not overrule
Almendarez-Torres in Apprendi v. New Jersey, 530 U.S. 466, 489-90
(2000). See United States v. Dabeit, 231 F.3d 979, 984 (5th Cir.
2000). Thus, the district court did not err in sentencing Rostro
under 8 U.S.C. § 1326(b).
The judgment of the district court is AFFIRMED.

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