IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-40005
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JESUS SANTOS-ROMERO,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. M-97-CR-207-1
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September 18, 1998
Before HIGGINBOTHAM, JONES, and DENNIS, Circuit Judges
PER CURIAM:*
Jesus Santos-Romero appeals the sentence imposed by the
district court following his guilty plea to a charge of illegal
reentry to the United States following deportation, a violation of
8 U.S.C. §§ 1326(a) and (b). Santos-Romero challenges the
characterization of his prior Texas conviction for possession of
more than 50, but less than 200, pounds of marijuana as an
aggravated felony and the concomitant 16-level increase in his base
offense level mandated by United States Sentencing Commission,
Guidelines Manual, § 2L1.2(b)(2).
*
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that this opinion should not be published and is not precedent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. 98-40005
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We review a sentence imposed under the Sentencing Guidelines
to determine “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. Hinojosa-Lopez, 130 F.3d 691,
693 (5th Cir. 1997)(citation and internal quotations omitted). We
review findings of fact for clear error, but we conduct a de novo
review of the district court’s applications of the Sentencing
Guidelines. Id.
In cases involving a conviction for unlawful reentry to the
United States, the defendant’s offense level must be increased by
16 levels if the defendant previously was deported after a
conviction for an aggravated felony. U.S.S.G. § 2L1.2(b)(2) (Nov.
1995). A “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.” Id. at
694. “Simple possession of marijuana is punishable under the
Controlled Substances Act,” and “possession of more than 50 but
less than 200 pounds of marijuana is now denominated a felony in
the second degree” in Texas. Hinojosa-Lopez, 130 F.3d at 694 &
n.2. Santos-Romero’s argument is thus foreclosed by this court’s
opinion in Hinojosa-Lopez.
Santos-Romero contends for the first time in this court that
the designation of his conviction for simple possession of
marijuana as an aggravated felony violates due process. Santos-
Romero did not raise this issue in the district court. Thus, we
review his assertion for plain error only. See United States v.
No. 98-40005
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Jackson, 50 F.3d 1335, 1340 n.6 (5th Cir. 1995) (issue which is not
raised in district court is reviewed for plain error). Under Fed.
R. Crim. P. 52(b), this court may correct forfeited errors only
when the appellant shows the following factors: (1) there is an
error, (2) that is clear or obvious, and (3) that affects his
substantial rights. United States v. Calverley, 37 F.3d 160,
162-64 (5th Cir. 1994) (en banc) (citing United States v. Olano,
507 U.S. 725, 730-36 (1993)). If these factors are established,
the decision to correct the forfeited error is within the sound
discretion of the court, and the court will not exercise that
discretion unless the error seriously affects the fairness,
integrity, or public reputation of judicial proceedings. Olano,
507 U.S. at 736.
“A criminal statute is void for vagueness under the Due
Process Clause of the Constitution when it fails to provide a
person of ordinary intelligence fair notice of the conduct it
proscribes.” See United States v. Nevers, 7 F.3d 59, 61 (5th Cir.
1993) (citations omitted). Santos-Romero does not contend that the
simple possession statute failed to provide sufficient notice of
the conduct it proscribed. He contends that the term “drug-
trafficking” does not indicate that simple possession of drugs is
conduct which is proscribed.
“[T]he term `drug-trafficking crime’ means any felony
punishable under the Controlled Substances Act.” 18 U.S.C.
§ 924(c)(2). Marijuana is defined as a controlled substance, and
“[s]imple possession of marijuana is punishable under the
Controlled Substances Act.” 21 U.S.C. §§ 802(6) and 812, Schedule
No. 98-40005
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I(c)(10); Hinojosa-Lopez, 130 F.3d at 694. Santos-Romero has not
shown plain error. Santos-Romero’s sentence is AFFIRMED.