* 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that this opinion should not be published and is not precedent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

FILED

February 18, 2004

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 03-40901

Conference Calendar

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

SILVANO VILLA-NEGRETE,

Defendant-Appellant.

--------------------

Appeal from the United States District Court

for the Southern District of Texas

USDC No. B-03-CR-63-ALL

--------------------

Before HIGGINBOTHAM, EMILIO M. GARZA, and PRADO, Circuit Judges. 

PER CURIAM:*

Silvano Villa-Negrete appeals his guilty-plea conviction

and sentence for being found illegally present in the United

States after deportation pursuant to 8 U.S.C. § 1326(a) and (b). 

He argues that the district court plainly erred in characterizing

his prior state felony conviction for simple possession of

marijuana as an aggravated felony within the context of

U.S.S.G. § 2L1.2(b)(1)(C). He acknowledges that his argument

is foreclosed by United States v. Caicedo-Cuero, 312 F.3d 697
No. 03-40901

-2-

(5th Cir. 2002), cert. denied, 123 S. Ct. 1948 (2003), but

wishes to preserve the issue for further review. Caicedo-Cuero

determined that simple drug possession qualifies as an aggravated

felony under U.S.S.G. § 2L1.2(b)(1)(C). 312 F.3d at 706-11. 

Thus, the district court did not plainly err in treating VillaNegrete’s prior state conviction for simple possession of

marijuana as an aggravated felony.

Villa-Negrete also argues for the first time on appeal

that a prior state felony conviction for simple possession is

not a drug trafficking crime and not an aggravated felony under

8 U.S.C. § 1101(a)(43)(B) or 8 U.S.C. § 1326(b)(2). He concedes

that his argument is foreclosed by current Fifth Circuit law,

citing United States v. Rivera, 265 F.3d 310, 312-13 (5th Cir.

2001), cert. denied, 534 U.S. 1146 (2002), and United States v.

Hinojosa-Lopez, 130 F.3d 691, 693-94 (5th Cir. 1997). Thus, the

district court did not plainly err in applying the eight-level

adjustment to his offense level based on his prior state felony

drug conviction. Jerome v. United States, 318 U.S. 101 (1943)

does not affect the binding precedential value of Rivera and

Hinojosa-Lopez.

Villa-Negrete argues, pursuant to Apprendi v. New Jersey,

530 U.S. 466 (2000), that the “felony” and “aggravated felony”

provisions of 8 U.S.C. § 1326(b)(1) and (2) are elements of the

offense, not sentence enhancements, making those provisions

unconstitutional. Villa-Negrete concedes that this argument is
No. 03-40901

-3-

foreclosed by Almendarez-Torres v. United States, 523 U.S. 224

(1998), and he raises it for possible review by the Supreme

Court. 

This argument is foreclosed by Almendarez-Torres, 523 U.S.

at 235. We must follow the precedent set in Almendarez-Torres

“unless and until the Supreme Court itself determines to overrule

it.” United States v. Dabeit, 231 F.3d 979, 984 (5th Cir. 2000)

(internal quotation and citation omitted).

AFFIRMED.