United States v. Gonzalez-Jimenez

Jaime Gonzalez-Jimenez pleaded guilty to one count of illegal reentry into the United States following deportation, and the district court sentenced him to 34 months in prison and a three-year term of supervised release. Gonzalez-Jimenez argues that the district court erred by characterizing his state felony conviction for simple possession of cocaine as an “aggravated felony” for purposes of U.S.S.G. § 2L1.2(b)(1)(C), when that same offense is punishable only as a misdemeanor under federal law. This issue, however, is foreclosed by our precedent. See United States v. Caicedo-Cuero, 312 F.3d 697, 706-11 (5th Cir. 2002), cert. denied, 538 U.S. 1021, 123 S.Ct. 1948, 155 L.Ed.2d 864 (2003); United States v. Hinojosa-Lopez, 130 F.3d 691, 693-94 (5th Cir. 1997). Gonzalez-Jimenez has not shown that the district court erred by characterizing his state conviction as an aggravated felony for U.S.S.G. § 2L1.2(b)(l)(C) purposes and by sentencing him accordingly.

Gonzalez-Jimenez argues that 8 U.S.C. § 1326(b) is unconstitutional on its face and as applied in his case because it does not require the fact of a prior felony or aggravated felony conviction to be charged in the indictment and proved beyond a reasonable doubt. This argument is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 *880L.Ed.2d 350 (1998). See United States v. Dabeit, 231 F.3d 979, 984 (5th Cir. 2000).

Gonzalez-Jimenez has shown no error in the district court’s judgment. Accordingly, that judgment is AFFIRMED.