United States v. Ramirez-Maldonado

* 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this opinion should not be published and is not precedent except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
August 17, 2005
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 04-40749
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TIMOTEO RAMIREZ-MALDONADO,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:04-CR-144-ALL
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Before BENAVIDES, CLEMENT, and PRADO, Circuit Judges.
PER CURIAM:*
Timoteo Ramirez-Maldonado (“Ramirez”) appeals his conviction
and sentence for illegal reentry after deportation.
Ramirez argues that the district court erred by imposing the
eight-level increase in U.S.S.G. § 2L1.2(b)(1)(C) (2003) for a
prior aggravated felony conviction. Ramirez contends that his
prior state conviction for possession of a controlled substance
is not a qualifying aggravated felony because it is not a felony
under federal law. Although Ramirez acknowledges that the

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decisions in United States v. Rivera, 265 F.3d 310 (5th Cir.
2001), and United States v. Hinojosa-Lopez, 130 F.3d 691 (5th
Cir. 1997), appear to foreclose this argument, he asserts that
these decisions are not binding because they conflict with Jerome
v. United States, 318 U.S. 101 (1943).
Our precedent is clear that Congress made a “deliberate
policy decision to include as an ‘aggravated felony’ a drug crime
that is a felony under state law but only a misdemeanor under the
[Controlled Substances Act].” United States v. Hernandez-Avalos,
251 F.3d 505, 510 (5th Cir. 2001) (internal quotation marks and
citation omitted). Accordingly, a prior conviction for a state
drug offense will qualify as an aggravated felony under U.S.S.G.
§ 2L1.2(b)(1)(C) if it is punishable under the Controlled
Substances Act and it is punishable by more than a year of
imprisonment under the applicable state law. See United States
v. Sanchez-Villalobos, 412 F.3d 572, 576-77 (5th Cir. 2005).
Ramirez does not dispute that his state offense was punishable
under the Controlled Substances Act or that the offense was a
felony under state law. This argument is meritless.
Ramirez also argues that the “felony” and “aggravated
felony” provisions of 8 U.S.C. § 1326(b)(1) and (2) are
unconstitutional in light of the Supreme Court’s decision in
Apprendi v. New Jersey, 530 U.S. 466 (2000). Ramirez’s argument
is, as he concedes, foreclosed. See Almendarez-Torres v. United
States, 523 U.S. 224 (1998); United States v. Izaguirre-Flores,

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405 F.3d 270, 277-78 (5th Cir. 2005), petition for cert. filed
(July 22, 2005) (No. 05-5469).
Ramirez also contends that his sentence is improper under
Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004), and
United States v. Booker, 125 S. Ct. 738 (2005). He concedes that
the plain-error standard of review applies. Ramirez has not
shown that the district court would have imposed a different
sentence under an advisory sentencing scheme. Thus, Ramirez has
not shown plain error in connection with his sentence. See
United States v. Martinez-Lugo, 411 F.3d 597, 600-01 (5th Cir.
2005).
The judgment of the district court is AFFIRMED.

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