Case: 09-40934 Document: 00511143874 Page: 1 Date Filed: 06/16/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 16, 2010
No. 09-40934
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
VICTOR JAVIER JIMENEZ-LOPEZ,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:09-CR-145-1
Before BENAVIDES, PRADO, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Victor Javier Jimenez-Lopez appeals his 57-month sentence following his
guilty plea conviction for illegal reentry after deportation. Jimenez-Lopez argues
that the district court plainly erred by sentencing him pursuant to 8 U.S.C.
§ 1326(b)(2), which increases the statutory maximum sentence for aliens
previously deported following an aggravated felony conviction. He, therefore,
asks that his case be remanded for reformation of the judgment to reflect his
conviction under § 1326(b)(1).
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
Case: 09-40934 Document: 00511143874 Page: 2 Date Filed: 06/16/2010
No. 09-40934
Jimenez-Lopez argues that his prior state conviction for drug possession
does not qualify as an aggravated felony because the Government did not prove
that he received the benefit of notice and procedural safeguards equivalent to
those outlined in 21 U.S.C. § 851 when he was convicted of that crime. As
Jimenez-Lopez correctly concedes, this argument is foreclosed by our decision in
United States v. Cepeda-Rios, 530 F.3d 333, 335-36 n.11 (5th Cir. 2008). The
Government’s motion for summary affirmance is GRANTED; its alternative
motion for an extension of time to file a brief is DISMISSED as MOOT.
AFFIRMED.
2