IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 97-40183
_____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
LUIS LAURO HINOJOSA-LOPEZ,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
_________________________________________________________________
December 4, 1997
Before REYNALDO G. GARZA, KING, and BENAVIDES, Circuit Judges.
KING, Circuit Judge:
Defendant-appellant Luis Lauro Hinojosa-Lopez appeals the
sentence imposed upon him by the district court after he pled
guilty to a one-count indictment charging him with unlawful
presence in the United States following deportation. He claims
that the district court incorrectly added sixteen points to his
offense level on the basis of his prior state felony conviction
for possession of marijuana. He also argues that the government
failed to prove all of the necessary elements of the offense of
which he was convicted. Finding no error, we affirm the district
court’s judgment of conviction and sentence.
I. FACTUAL & PROCEDURAL BACKGROUND
Luis Lauro Hinojosa-Lopez pled guilty to a one-count
indictment charging him with unlawful presence in the United
States following deportation pursuant to 8 U.S.C. § 1326(a),
(b)(2) (1994). In exchange for Hinojosa-Lopez’s guilty plea, the
government agreed to recommend the maximum credit for acceptance
of responsibility and a sentence at the low end of the applicable
Sentencing Guidelines range. The Presentence Investigation
Report (“PSR”) indicated that Hinojosa-Lopez’s previous
convictions included a Texas conviction for “aggravated unlawful
possession of marijuana,” for which he had received a five-year
prison sentence. Based on that Texas conviction, the PSR stated
that Hinojosa-Lopez’s base offense level of eight should be
increased by four points because he had been deported after
conviction of a felony. See U.S. SENTENCING GUIDELINES MANUAL
§ 2L1.2(a), (b)(1) (1995). The PSR also indicated that Hinojosa-
Lopez was entitled to a two-point reduction for acceptance of
responsibility, see id. § 3E1.1(a), resulting in a total offense
level of ten, which, in combination with a criminal history
category of III, produced a guidelines sentencing range of ten to
sixteen months of imprisonment. Neither the government nor
Hinojosa-Lopez objected to these findings.
At the initial sentencing hearing, the district court
queried whether Hinojosa-Lopez’s Texas conviction for aggravated
possession of marijuana was an aggravated felony within the
meaning of § 2L1.2(b)(2) of the Sentencing Guidelines. Section
2
2L1.2(b)(2) requires a sixteen-point increase in the offense
level rather than the four-point increase mandated by
§ 2L1.2(b)(1). See id. § 2L1.2(b)(1), (2). As neither side was
prepared to address this issue, the judge continued the
sentencing hearing. When the sentencing hearing resumed, defense
counsel confirmed that cases from every circuit that had
considered the issue indicated that a sixteen-point increase in
Hinojosa-Lopez’s offense level pursuant to § 2L1.2(b)(2) was
appropriate, but he nevertheless asked the court to sentence
Hinojosa-Lopez according to the original PSR.
The district court found that Hinojosa-Lopez’s aggravated
possession of marijuana conviction qualified as an aggravated
felony and applied the sixteen-point increase pursuant to
§ 2L1.2(b)(2) of the Sentencing Guidelines. The court then
granted Hinojosa-Lopez a three-point decrease for acceptance of
responsibility, resulting in a guidelines sentencing range of
forty-six to fifty-seven months of imprisonment. However,
because the court found that the PSR overstated Hinojosa-Lopez’s
criminal history, the court decreased the criminal history
category to II and sentenced Hinojosa-Lopez to forty-two months
of imprisonment.
II. DISCUSSION
A. Application of § 2L1.2(b)(2)
Hinojosa-Lopez argues that the district court erred in
imposing a sixteen-point enhancement pursuant to § 2L1.2(b)(2) of
the Sentencing Guidelines. He contends that the term “aggravated
3
felony” as used in § 2L1.2(b)(2) does not include his Texas
felony conviction for possession of marijuana because that crime
is only a misdemeanor under federal law. See 21 U.S.C. § 844(a)
(1994).
This court’s review of a sentence imposed under the
Sentencing Guidelines is limited to “a determination whether the
sentence was imposed in violation of law, as a result of an
incorrect application of the Sentencing Guidelines, or was
outside of the applicable guideline range and was unreasonable.”
United States v. Matovsky, 935 F.2d 719, 721 (5th Cir. 1991). We
will reverse the trial court’s findings of fact only if they are
clearly erroneous, but “[w]e review a claim that the district
court erred in applying U.S.S.G. § 2L1.2(b)(2) instead of
§ 2L1.2(b)(1) de novo.”1 United States v. Reyna-Espinosa, 117
F.3d 826, 828 (5th Cir. 1997).
Section 2L1.2(b)(2) of the Sentencing Guidelines provides
that the defendant’s offense level should be increased by sixteen
points “[i]f the defendant previously was deported after a
conviction for an aggravated felony.” U.S. SENTENCING GUIDELINES
1
The government contends that this court should review
the district court’s application of § 2L1.2(b)(2) only for plain
error because Hinojosa-Lopez did not object at sentencing.
Hinojosa-Lopez, however, contends that our consideration of this
issue is not limited to plain error review. He argues that the
fact that the district court itself raised the issue of whether
his prior conviction constituted an aggravated felony indicates
that the court had an adequate opportunity to consider the issue.
Because we conclude that the district court’s application of
§ 2L1.2(b)(2) was correct under either standard of review, we
decline to address this issue. We therefore assume, without
deciding, that Hinojosa-Lopez adequately preserved this ground of
error for appellate review.
4
MANUAL § 2L1.2(b)(2) (1995). Application Note 7 to § 2L1.2
defines the term “aggravated felony,” in pertinent part, as
follows:
“Aggravated felony,” as used in subsection (b)(2),
means . . . any illicit trafficking in any controlled
substance (as defined in 21 U.S.C. § 802), including
any drug trafficking crime as defined in 18 U.S.C.
§ 924(c)(2) . . . . The term “aggravated felony”
applies to offenses described in the previous sentence
whether in violation of federal or state law . . . .
Id. § 2L1.2 Application Note 7.
Marijuana is a “controlled substance.” 21 U.S.C. §§ 802(6),
812 Schedule I(c)(10) (1994). In pertinent part, 18 U.S.C.
§ 924(c)(2) defines a “drug trafficking crime” as “any felony
punishable under the Controlled Substances Act (21 U.S.C. § 801
et seq).” 18 U.S.C. § 924(c)(2) (1994). Hinojosa-Lopez contends
that this language indicates that in order to qualify as an
aggravated felony, the crime must be classified as a felony by
the Controlled Substances Act. We disagree.
Although this is an issue of first impression before this
court, it has been addressed by several other circuits. In
United States v. Restrepo-Aguilar, 74 F.3d 361 (1st Cir. 1996),
the First Circuit held that the defendant’s prior state
conviction for simple possession of cocaine qualified as an
aggravated felony under § 2L1.2(b)(2) despite the fact that the
same offense was punishable only as a misdemeanor under federal
law. Id. at 364-65. Looking to the interaction between the
Sentencing Guidelines and the applicable federal statutes, the
court held that 18 U.S.C. § 924(c)(2) defines a “drug trafficking
5
crime” as “encompassing two separate elements: (1) that the
offense be punishable under the Controlled Substances Act (or one
of the other two statutes identified); and (2) that the offense
be a felony.” Id. at 364. The court then explained that
a state drug offense is properly deemed a “felony”
within the meaning of 18 U.S.C. § 924(c)(2) as
incorporated by application note 7 to U.S.S.G. § 2L1.2,
if the offense is classified as a felony under the law
of the relevant state, even if the same offense would
be punishable only as a misdemeanor under federal law.
Id. at 365. As the defendant’s prior conviction was a felony
under applicable state law and was punishable under the
Controlled Substances Act, the court held that § 2L1.2(b)(2)
applied. Id.
We agree with the reasoning of the First Circuit in
Restrepo-Aguilar and of the four other circuits that have
considered this issue. See, e.g., United States v. Briones-Mata,
116 F.3d 308, 310 (8th Cir. 1997) (“We believe the definitions of
the terms at issue indicate that Congress made a deliberate
policy decision to include as an ‘aggravated felony’ a drug crime
that is a felony under state law but only a misdemeanor under the
[Controlled Substances Act].”); United States v. Garcia-Olmedo,
112 F.3d 399, 400-01 (9th Cir. 1997) (holding that prior Arizona
felony convictions for possession of marijuana that also would
have been punishable under 21 U.S.C. § 844(a) constituted
aggravated felonies under § 2L1.2(b)(2)); United States v.
Cabrera-Sosa, 81 F.3d 998, 1000 (10th Cir.) (holding that a prior
New York felony conviction for possession of cocaine that also
would have been punishable under 21 U.S.C. § 844(a) constituted
6
an aggravated felony under § 2L1.2(b)(2)), cert. denied, 117 S.
Ct. 218 (1996); United States v. Polanco, 29 F.3d 35, 38 (2d Cir.
1994) (“Because Polanco’s [New York] felony conviction was for an
offense punishable under the Controlled Substances Act, one of
the statutes enumerated under section 924(c)(2), the offense
rises to the level of ‘aggravated felony’ under section
2L1.2(b)(2) and 8 U.S.C. § 1326(b)(2) regardless of the quantity
or nature of the contraband or the severity of the sentence
imposed.”). Thus, Hinojosa-Lopez’s prior conviction constitutes
an aggravated felony for purposes of § 2L1.2(b)(2) if (1) the
offense was punishable under the Controlled Substances Act and
(2) it was a felony.
Simple possession of marijuana is punishable under the
Controlled Substances Act, albeit as a misdemeanor. 21 U.S.C.
§ 844(a) (1994). The statute under which Hinojosa-Lopez was
convicted in 1991 was the Texas Controlled Substances Act, TEX.
HEALTH & SAFETY CODE ANN. § 481.121 (Vernon 1992), which states that
the knowing or intentional possession of more than fifty but less
than two hundred pounds of marijuana is an “aggravated offense,”
punishable for a life term or a term of not more than ninety-nine
nor less than five years of imprisonment and by a fine not to
exceed $50,000.2 Id. § 481.121(d)(1). Aggravated possession of
2
In 1993, the statute was amended to delete subsection
(c); possession of more than 50 but less than 200 pounds of
marijuana is now denominated a felony in the second degree. See
TEX. HEALTH & SAFETY CODE ANN. § 481.121(b)(5) (Vernon Supp. 1997).
A second degree felony is punishable by a sentence of two to
twenty years and a fine not to exceed $10,000. TEX. PEN. CODE ANN.
§ 12.33 (Vernon 1994).
7
marijuana is a felony under Texas law. See id.; Young v. State,
922 S.W.2d 676, 676 (Tex. App.--Beaumont 1996, pet. ref’d).
Thus, for purposes of § 2L1.2, Hinojosa-Lopez’s Texas conviction
was an aggravated felony because his offense was a felony that
also was punishable under the Controlled Substances Act.
B. Sufficiency of the Factual Basis Supporting the Guilty Plea
Hinojosa-Lopez next argues that his conviction was invalid
because the government failed to prove all of the elements of a
violation of 8 U.S.C. § 1326. He argues that in order to prove
him guilty of violating the statute, the government had to show
that he was “arrested and deported” or “excluded and deported.”
He claims that the proof offered by the government only showed
that he was deported and did not reflect whether the deportation
was preceded by arrest or exclusion. This argument lacks merit.
Federal Rule of Criminal Procedure 11(f) requires that the
sentencing court satisfy itself that an adequate factual basis
exists to demonstrate that the defendant committed the charged
offense. United States v. Adams, 961 F.2d 505, 508 (5th Cir.
1992). “The acceptance of a guilty plea is deemed a factual
finding that there is an adequate factual basis for the plea.”
Id. at 509. We will reverse this finding only if it was clearly
erroneous. Id.
In the instant case, the indictment alleged that Hinojosa-
Lopez was both arrested and deported. We have held that, “[i]f
sufficiently specific, an indictment or information can be used
as the sole source of the factual basis for a guilty plea.” Id.
8
In this case, however, the government also summarized the facts
surrounding Hinojosa-Lopez’s prior arrest and deportation, and
Hinojosa-Lopez agreed to the facts as stated by the prosecutor.
Indeed the district court was extremely thorough and specifically
questioned Hinojosa-Lopez about each fact presented by the
government, including his arrest in 1991 prior to his
deportation. As a result, we do not think that the factual basis
was insufficient to support Hinojosa-Lopez’s guilty plea.
III. CONCLUSION
For the foregoing reasons, we AFFIRM the judgment of the
district court.
9