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

                                                                  FILED
                                                                  May 13, 2008
                                No. 06-11359
                              Summary Calendar               Charles R. Fulbruge III
                                                                     Clerk

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
that the 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).



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should not be published and is not precedent except under the limited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

      Vela-Ramirez did not make this specific argument in the district court.
Accordingly, we review for plain error only. See United States v. Fernandez-
Cusco, 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.” United States 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

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                                  No. 06-11359

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).
United States v. Pineda-Arrellano, 492 F.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.




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