United States v. Herrera

* 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that this opinion should not be published and is not precedent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. 02-50219
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RAYMOND CARSAREZ HERRERA,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Western District of Texas
USDC No. SA-01-CR-425-ALL
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October 30, 2002
Before DeMOSS, BENAVIDES, and STEWART, Circuit Judges.
PER CURIAM:*
Raymond Carsarez Herrera appeals the sentence he received
following his guilty plea conviction for distributing cocaine.
He argues that he was improperly sentenced as a career offender
under U.S.S.G. § 4B1.1. Specifically, he contends that the
career-offender enhancement was error because his prior
convictions for using a telephone to facilitate drug offenses, in
violation of 21 U.S.C. § 843, did not qualify as predicate
offenses for purposes of § 4B1.1 and that, to the extent that the

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No. 02-50219
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Sentencing Commission authorizes the enhancement based on such
convictions, it has exceeded its authority.
As Herrera concedes, his argument is foreclosed. See United
States v. Lightbourn, 115 F.3d 291, 293 & n.5 (5th Cir. 1997);
see also U.S.S.G. § 4B1.1 & comment. (background); U.S.S.G.
§ 4B1.2, comment. (n.1). He raises the issue to preserve it for
possible Supreme Court review. The district court’s judgment is
AFFIRMED.

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