* 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should not be published and is not precedent except under the limited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. 06-11359

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

RAFAEL VELA-RAMIREZ,

Defendant-Appellant.

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 3: 06-CR-128-ALL

Before SMITH, BARKSDALE and ELROD, Circuit Judges.

PER CURIAM:*

Rafael Vela-Ramirez appeals his conviction and the 57-month term of

imprisonment imposed following his guilty plea to attempting to reenter the

United States illegally following deportation. Vela-Ramirez principally argues

thatthe district court erred in determining that his prior Texas drug convictions

qualified as “drug trafficking offenses” warranting an offense level enhancement

under U.S.S.G. § 2L1.2(b)(1)(A)(i).

United States Court of Appeals

Fifth Circuit

F I L E D

May 13, 2008

Charles R. Fulbruge III

Clerk
No. 06-11359

2

Vela-Ramirez did not make this specific argument in the district court.

Accordingly, we review for plain error only. See United States v. FernandezCusco, 447 F.3d 382, 384 (5th Cir.), cert. denied, 127 S. Ct. 194 (2006); United

States v. Villegas, 404 F.3d 355, 358 (5th Cir. 2005)

The record demonstrates that Vela-Ramirez twice was convicted of

possession with intent to deliver a controlled substance in violation of TEX.

HEALTH & SAFETY CODE ANN. § 481.112(a). This court recently concluded that

this conviction is indistinguishable from the offense of possession with intent to

distribute and therefore constitutes a “controlled substance offense” under

U.S.S.G. § 2K2.1(a). United States v. Ford, 509 F.3d 714, 717 & n.2 (5th Cir.

2007), petition for cert. filed (Apr. 16, 2008) (No. 07-10458) . This court further

stated that the definitions of “drug trafficking offense” under § 2L1.2 and

“controlled substance offense” under § 2K2.1 are effectively identical for

purposes of determining if a prior § 481.112(a) conviction for possession with

intent to deliver justifies a sentencing enhancement based on either section. Id.

at 717 n.2. Thus, in light of Ford, Vela-Ramirez’s prior convictions for

possession with intent to deliver constitute “drug trafficking offenses,” and the

district court’s application of § 2L1.2 was appropriate.

Vela-Ramirez additionally contends that the district court imposed an

unreasonable sentence because it refused to consider the sentencing disparity

between his case and those of defendants in districts that offer “early

disposition” programs. This court has rejected a nearly identical argument and

held that “the refusal to factor in, when sentencing a defendant, the sentencing

disparity caused by early disposition programs does not render a sentence

unreasonable.” UnitedStates v. Aguirre-Villa, 460 F.3d 681, 683 (5th Cir. 2006),

cert. denied, 127 S. Ct. 3053 (2007). Thus, as acknowledged by Vela-Ramirez,

this argument is foreclosed.

Furthermore, in light of Apprendi v. New Jersey, 530 U.S. 466 (2000),

Vela-Ramirez challenges the constitutionality of 8 U.S.C. § 1326(b)’s treatment
No. 06-11359

3

of prior felony and aggravated felony convictions as sentencing factors rather

than elements of the offense that must be found by a jury. This argument is

foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).

UnitedStates v.Pineda-Arrellano, 492F.3d 624, 625 (5th Cir. 2007), cert. denied,

128 S. Ct. 872 (2008).

For the foregoing reasons, the judgment of the district court is

AFFIRMED.