UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-40300
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CRUZ ANGEL MUNIZ-HERRERA,
also known as Cruz Angel Muniz,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
(B-97-CR-458-1)
February 19, 1999
Before POLITZ, BARKSDALE, and STEWART, Circuit Judges.
PER CURIAM:*
Cruz Angel Muniz-Herrera appeals his guilty plea conviction and sentence
for illegal reentry following deportation in violation of 8 U.S.C. § 1326. On
appeal he contends that the district court erred in enhancing his offense level by
16 levels under the aggravated felony provision of section 2L1.2(b)(1)(A) of the
Sentencing Guidelines. His contention is that the definition of aggravated felony
*
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 R. 47.5, the Court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
as used in said section is unconstitutionally vague. Specifically, he maintains
that his prior state court conviction for possession of marihuana should not be
construed as a drug-trafficking offense constituting an aggravated felony within
the meaning of section 2L1.2.
Muniz raises this issue for the first time on appeal and we therefore review
only for plain error.1 To demonstrate plain error Muniz most show a clear or
obvious error affecting substantial rights. If this is done, we reserve the
discretion to correct such an error if it seriously affects the fairness, integrity, or
public reputation of the judicial proceedings.2
As we previously have noted, a criminal statute is void for vagueness
under the due process clause if it fails to provide a person of ordinary
intelligence with fair notice of the proscribed conduct.3 The due process
constitutional guaranty does not, however, “mandate . . . notice, advice, or a
probable prediction of where, within the statutory range, the guideline sentence
will fall.”4 Our review of the record, relevant statutes, and guidelines persuades
that Muniz has not demonstrated trial court error in sentencing, plain or
otherwise.
1
United States v. Spires, 79 F.3d 464 (5th Cir. 1996); United States v. Knowles, 29
F.3d 947 (5th Cir. 1994).
2
United States v. Calverley, 37 F.3d 160 (5th Cir. 1994) (en banc).
3
United States v. Nevers, 7 F.3d 59 (5th Cir. 1993); United States v.s Giles, 640 F.2d
621 (5th Cir. 1981).
4
United States v. Pearson, 910 F.2d 221, 223 (5th Cir. 1990); United States v. Brito,
136 F.3d 397 (5th Cir.), cert. denied, 118 S.Ct. 2389 (1998).
2
In addition, Muniz contends that his guilty plea conviction should be
reversed because the record does not affirmatively show that he personally,
knowingly, and voluntarily waived his constitutional rights. This contention is
based on the fact that he and several other defendants simultaneously entered
guilty pleas to violations of section 1326. Muniz does not contend that his guilty
plea was involuntary or that he did not understand that by pleading guilty he was
waiving certain constitutional rights. He has not identified any harmful error.5
There is no basis for the reversal he seeks.
The conviction and sentence appealed are AFFIRMED.
5
Fed.R.Crim.P. 11(h), 52(a); United States v. Johnson, 1 F.3d 296 (5th Cir. 1993) (en
banc).
3