No. 98-40815
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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-40815
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MIGUEL ANGEL HERNANDEZ-SOTO,
also known as Elmer Antonio Gonzalez-Hernandez,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. M-98-CR-128-01
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April 30, 1999
Before HIGGINBOTHAM, JONES and DENNIS, Circuit Judges.
PER CURIAM:*
Miguel Angel Hernandez-Soto appeals the sentence imposed by
the district court following his guilty-plea conviction of
illegal reentry into the United States following deportation, a
violation of 8 U.S.C. §§ 1326. Hernandez challenges the
characterization of his prior Texas conviction for possession of
cocaine as an aggravated felony and the concomitant 16-level
increase in his base offense level under by U.S.S.G.
§ 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that this opinion should not be published and is not precedent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. 98-40815
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Because Hernandez did not make this argument in the district
court, his sentence is reviewed for plain error. See United
States v. Rodriguez, 15 F.3d 408, 414 (5th Cir., 1994).
Hernandez’s argument is foreclosed by this court’s opinion in
United States v. Hinojosa-Lopez, 130 F.3d 691, 694 (5th Cir.
1997). Hernandez’s contention that the term “drug trafficking”
as cited to by the Guidelines is unconstitutionally vague and
does not provide notice that it applies to mere possession of
drugs is unfounded. United States v. Pearson, 910 F.2d 221, 223
(5th Cir. 1991).
Hernandez’s appeal is frivolous. See United States v.
Arevalo-Sanchez, No. 98-20093 (5th Cir. Sept. 23, 1998)
(unpublished), petition for cert. filed, No. 98-7384 (Dec. 18,
1998). Accordingly, his appeal is DISMISSED. See 5th Cir.
R. 42.2.