           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                   Fifth Circuit

                                                                            FILED
                                                                         February 10, 2009
                                     No. 08-10514
                                   Summary Calendar                   Charles R. Fulbruge III
                                                                              Clerk

UNITED STATES OF AMERICA

                                                  Plaintiff-Appellee

v.

MARGARITO MUNOZ-ASTELLO

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                            USDC No. 1:07-CR-69-ALL


Before KING, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
       Margarito Munoz-Astello appeals his guilty plea conviction and sentence
for illegal reentry after deportation in violation of 8 U.S.C. § 1326. He argues
(1) that the district court plainly erred in treating his federal drug conviction as
a “drug trafficking crime” under U.S.S.G. § 2L1.2; (2) that his case should be
remanded so the district court can consider the disparity created by early
disposition programs; (3) that his sentence violates his equal protection rights;
and (4) that the district court plainly erred in ordering that his sentence be

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
                                  No. 08-10514

served consecutively to an unimposed state sentence. The Government has
moved to supplement the record and for summary affirmance, or, in the
alternative, for an extension of time to file an appellate brief. The Government’s
unopposed motion to supplement the record with the factual resume for Munoz-
Astello’s prior drug conviction under 21 U.S.C. § 841(a)(1) is granted.
      Munoz-Astello’s first appellate argument is without merit. A comparison
of the statute and Guideline at issue shows that a conviction under § 841(a)(1)
qualifies as a drug trafficking offense under § 2L1.2(b)(1)(A)(I). See § 841(a)(1);
§ 2L1.2, comment. (n.1(B)(iv)). Moreover, as Munoz-Astello concedes, his last
three appellate arguments are foreclosed by our precedent. See United States
v. Gomez-Herrera, 523 F.3d 554, 563 n.4 (5th Cir.), petition for cert. filed (July
2, 2008) (No. 08-5226); United States v. Rodriguez, 523 F.3d 519, 526 (5th Cir.),
petition for cert. filed (June 30, 2008) (08-5101); United States v. Brown, 920 F.2d
1212, 1216-17 (5th Cir. 1991), (abrogation on other grounds recognized, United
States v. Candia, 454 F.3d 468, 473 (5th Cir. 2006)). Munoz-Astello raises his
last three arguments solely to preserve them for further review.
      Accordingly, the district court’s judgment is AFFIRMED.                  The
Government’s motions to supplement the record and for summary affirmance are
GRANTED. The Government’s alternative motion for an extension of time to file
an appellate brief is DENIED as MOOT.




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