IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-40200
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JORGE MONTES-RANGEL,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. L-98-CR-909-1
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December 14, 1999
Before JOLLY, HIGGINBOTHAM, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Jorge Montes-Rangel pleaded guilty to illegally reentering
the United States after deportation. Montes’s prior deportation
followed a conviction in a Texas court for possession of cocaine,
a felony under Texas law. The district court sentenced Montes to
46 months in prison, after increasing his base offense level
pursuant to U.S.S.G. § 2L1.2(b)(1)(A), which provides a 16-level
enhancement for a defendant previously deported following an
aggravated-felony conviction. Montes argues that his prior
conviction should not be characterized as an 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that this opinion should not be published and is not precedent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.
No. 99-40200
-2-
because aggravated felonies are defined by statute as “drug
trafficking” crimes. He further contends that construing simple
possession of cocaine as a crime involving “drug trafficking”
violates the notice requirements of the Fifth Amendment’s Due
Process Clause.
Montes’s argument is foreclosed, as he concedes, by this
court’s prior opinion in United States v. Hinojosa-Lopez, 130
F.3d 691 (5th Cir. 1997). As to his constitutional argument, due
process applies to criminal statutes, requiring that they give
fair notice of proscribed conduct. See United States v. Nevers,
7 F.3d 59, 61 (5th Cir. 1993) (citations omitted). Montes’s
challenge is to a sentencing guideline, not to a criminal
statute. “Due process does not mandate . . . notice, advice, or
a probable prediction of where, within the statutory range, the
guideline sentence will fall.” United States v. Pearson, 910
F.2d 221, 223 (5th Cir. 1990).
Because Montes’s Texas felony conviction for possession of
cocaine was an aggravated felony for purposes of
§ 2L1.2(b)(1)(A), it is unnecessary to decide whether his prior
federal conviction for illegally transporting aliens was an
aggravated felony.
AFFIRMED.