IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 00-40023
Summary Calendar
_____________________
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
ALEJANDRO AGUILAR-CABELLERO
Defendant - Appellant
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
USDC No. L-99-CR-696-1
_________________________________________________________________
August 30, 2000
Before KING, Chief Judge, and JONES and STEWART, Circuit Judges.
PER CURIAM:*
Following entry of his guilty plea, Alejandro Aguilar-
Cabellero was convicted of illegally re-entering the United
States pursuant to 8 U.S.C. § 1326 and was sentenced to a
seventy-month term of imprisonment. He contends that because his
prior state-court conviction for mere possession of cocaine
cannot qualify as an “aggravated felony,” the sentencing court
erred in basing his sentence on a 16-level enhancement under
*
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that this opinion should not be published and is not precedent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.
§ 2L1.2(b)(1)(A) of the Sentencing Guidelines. See U.S. SENTENCING
GUIDELINES MANUAL § 2L1.2(b)(1)(A) (1998).
Section 2L1.2 reflects implementation of § 1326’s
enhancement for prior convictions for committing aggravated
felonies. See 8 U.S.C. § 1326(b)(2) (providing that those
individuals convicted of illegal entry after removal who were
previously convicted for committing aggravated felonies face up
to a twenty-year sentence as compared to the two-year sentence
described in § 1326(a) or the ten-year sentence described in
§ 1326(b)(1)); United States v. Zavala-Sustaita, 214 F.3d 601,
603 (5th Cir. 2000). The Application Notes for § 2L1.2 provide
that the term “aggravated felony” is defined at 8 U.S.C.
§ 1101(a)(43). See U.S. SENTENCING GUIDELINES MANUAL § 2L1.2 comment,
n.1. Section 1101(a)(43) lists as an aggravated felony “a drug
trafficking crime” as that term is defined in 18 U.S.C. § 924(c).
See 8 U.S.C. § 1101(a)(43). Aguilar-Cabellero contends that
considering mere possession of cocaine as a “drug trafficking
crime” violates both the due process requirement of notice and
specificity and the rule of lenity.
Aguilar-Cabellero recognizes that our opinion in United
States v. Hinojosa-Lopez, 130 F.3d 691 (5th Cir. 1997), may be
dispositive of his claim. He distinguishes that case on both its
facts and the issue presented to the court. The defendant in
Hinojosa-Lopez was convicted of possessing more than fifty pounds
of marijuana. Aguilar-Cabellero points to the fact that, in
2
contrast, he was convicted of simple cocaine possession, which
would be a misdemeanor under federal law. Aguilar-Cabellero also
notes that Hinojosa-Lopez asserted that his prior conviction did
not warrant the 16-level enhancement because it too would have
been a misdemeanor under federal law. Thus, Aguilar-Cabellero
contends, our statement in Hinojosa-Lopez that marijuana
possession was a drug-trafficking crime under § 924(c) was mere
dicta and need not be followed.
Aguilar-Cabellero looks to the dictionary and to legislative
history of 18 U.S.C. § 924(c) for support for his contention that
“drug-trafficking” does not include mere possession and for his
argument that a person of reasonable intelligence could not be
expected to understand that mere possession would be equated with
drug trafficking. He also argues that, because § 924(c)’s
language is at least ambiguous, the rule of lenity dictates that
it be interpreted in a manner so as to yield a lesser sentence.
We find that Hinojosa-Lopez is indeed dispositive. The
differences Aguilar-Cabellero identifies in the two cases do not
render our prior holding inapplicable. We agreed in Hinojosa-
Lopez with the five circuits that had by then addressed the issue
that a “prior conviction constitutes an aggravated felony for
purposes of § 2L1.2(b)[(1)(A)] if (1) the offense was punishable
under the Controlled Substances Act and (2) it was a felony.” 130
F.3d at 694. This holding was based in part on language of
§ 924(c)(2), which defines a “drug trafficking crime” as
3
including “any felony punishable under the Controlled Substances
Act,” 18 U.S.C. § 924(c)(2), and of the Controlled Substances
Act, which defines “felony” as “any Federal or State offense
classified by applicable Federal or State law as a felony.” 21
U.S.C. § 802(13).1 Aguilar-Cabellero’s prior conviction for
possession of cocaine meets the definition of an aggravated
felony under Hinojosa-Lopez. 130 F.3d at 694.
Even if we did not find Hinojosa-Lopez controlling, we would
have to reject Aguilar-Cabellero’s challenge. His vagueness
arguments are directed at a statute, § 924(c), that the
sentencing court did not apply to his case. Instead, § 924(c) is
relevant only to an interpretation of the term “aggravated
felony” as used in the Sentencing Guidelines. We must therefore
assess Aguilar-Cabellero’s arguments within the context of those
Guidelines. As we have previously held, “[d]ue process does not
mandate . . . either 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); see also United States v. Brierton, 163 F.3d 1133, 1139
(7th Cir. 1999) (concluding that the Sentencing Guidelines “are
not susceptible to attack under the vagueness doctrine”), reh’g
1
We note that the Application Notes for § 2L1.2 also
define “felony offense” broadly. See U.S. Sentencing Guidelines
Manual § 2L1.2 comment, n.1 (defining “felony offense” to mean
“any federal, state, or local offense punishable by imprisonment
for a term exceeding one year”).
4
granted Mar. 25, 1999; United States v. Wivell, 893 F.2d 156,
160 (8th Cir. 1990) (“Because there is no constitutional right to
sentencing guidelines — or, more generally, to a less
discretionary application of sentences than that permitted prior
to the Guidelines — the limitations the Guidelines place on a
judge’s discretion cannot violate a defendant’s right to due
process by reason of being vague.”). In fact, Aguilar-Cabellero
received notice in his pre-sentencing report that he qualified
for a 16-level enhancement under § 2L1.2(b)(1)(A) based on his
prior conviction for cocaine possession.
Aguilar-Cabellero’s rule of lenity argument must also be
rejected. Even if our task involved a determination of Congress’
intent in enacting and amending § 924(c) (rather than a
determination of the meaning of “aggravated felony” in
§ 2L1.2(b)(1)(A)), that § 924(c) could be interpreted in a
different manner does not make the rule of lenity applicable.
See Muscarello v. United States, 524 U.S. 125, 138-39 (1998)
(“The simple existence of some statutory ambiguity, however, is
not sufficient to warrant application of [the rule of lenity],
for most statutes are ambiguous to some degree. . . . To invoke
the rule, we must conclude that there is a grievous ambiguity or
uncertainty in the statute.” (internal citations and quotation
marks omitted)); Zavala-Sustaita, 214 F.3d at 607 n.11 (noting
that the rule of lenity “applies only when ‘a reasonable doubt
persists about a statute’s intended scope even after resort to
5
the language and structure, legislative history, and motivating
policies of the statute.’” (quoting Moskal v. United States, 498
U.S. 103, 108 (1990))). As it stands, circuit courts considering
cases involving prior convictions for possession of a controlled
substance are in agreement that simple possession can be
considered an “aggravated felony” under § 2L1.2(b)(1)(A). See
United States v. Ibarra-Galindo, 206 F.3d 1337, 1341 (9th Cir.
2000); United States v. Pornes-Garcia, 171 F.3d 142, 146 (2d
Cir.), cert. denied, 120 S. Ct. 191 (1999); Hinojosa-Lopez, 130
F.3d at 694; United States v. Briones-Mata, 116 F.3d 308, 309
(8th Cir. 1997); United States v. Cabrera-Sosa, 81 F.3d 998, 1000
(10th Cir.), cert. denied, 519 U.S. 885 (1996).2 This
substantial agreement alone suggests to us that there is
insufficient ambiguity to warrant application of the rule of
lenity. See Ibarra-Galindo, 206 F.3d at 1341.
For the foregoing reasons, we AFFIRM.
2
Aguilar-Cabellero looks to Aguirre v. INS, 79 F.3d 315
(2d Cir. 1996) for support for his contentions. However, the
Second Circuit has explicitly stated that Aguirre’s definition of
“aggravated felony” does not control applications of
§ 2L1.2(b)(1)(A). See Pornes-Garcia, 171 F.3d at 143.
6