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

                                                FILED
                                                                 November 11, 2009
                                No. 09-50164
                              Summary Calendar                Charles R. Fulbruge III
                                                                      Clerk

UNITED STATES OF AMERICA,

                                            Plaintiff-Appellee

v.

LORENA PORRAS-RASCON, Lorena Porras De Ruiz,

                                            Defendant-Appellant


                 Appeal from the United States District Court
                      for the Western District of Texas
                          USDC No. 3:08-CR-2797-1


Before REAVLEY, GARZA, and OWEN, Circuit Judges.
PER CURIAM:*
      Lorena Porras-Rascon (Porras) appeals the sentence imposed following her
guilty plea to illegal reentry. She argues for the first time on appeal that the
district court improperly enhanced her sentence pursuant to U.S.S.G.
§ 2L1.2(b)(1)(A)(i) by relying solely on the presentence report’s characterization
of her prior 21 U.S.C. § 952 conviction for importation of marijuana as a drug
trafficking crime and its own recollection of that conviction. Because Porras did



      *
      Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
                                  No. 09-50164

not object to the § 2L1.2 enhancement on this basis in the district court, her
argument is reviewed for plain error only. See United States v. Mares, 402 F.3d
511, 520 (5th Cir. 2005). Porras, however, has not established reversible plain
error because she has demonstrated no prejudice from the district court’s alleged
error; thus, she cannot show that her substantial rights have been affected. See
id. at 520-21.
      In light of Apprendi v. New Jersey, 530 U.S. 466 (2000), Porras also
challenges the constitutionality of 8 U.S.C. § 1326(b)’s treatment 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).
      AFFIRMED.




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