IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-20933
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
HECTOR AURELIO SANCHEZ-ZUNIGA,
also known as Hector Sanchez,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-99-CR-183-1
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August 23, 2000
Before KING, Chief Judge, and POLITZ and WIENER, Circuit Judges.
PER CURIAM:*
Hector Aurelio Sanchez-Zuniga (Sanchez) appeals the sentence
imposed following his guilty plea conviction for illegal reentry
into the United States in violation of 8 U.S.C. § 1326. Sanchez
challenges a sixteen-level increase to his base offense level
pursuant to U.S.S.G. § 2L1.2. Sanchez’s argument that mere
possession of cocaine does not qualify as an “aggravated felony”
for purposes of § 2L1.2 is foreclosed by our decision in United
States v. Hinojosa-Lopez, 130 F.3d 691, 693-94 (5th Cir. 1997).
*
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that this opinion should not be published and is not precedent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. 99-20933
-2-
In Hinojosa-Lopez, we determined that a prior conviction
constitutes an aggravated felony for purposes of § 2L1.2 if
“(1) the offense was punishable under the Controlled Substances
Act and (2) it was a felony.” 130 F.3d at 694. Hinojosa-Lopez’s
rationale applies to the instant case. Possession of cocaine is
punishable under the Controlled Substances Act, and such
possession is a felony under Texas law. See 21 U.S.C. § 844(a);
TEX. HEALTH & SAFETY CODE ANN. §§ 481.102(3)(D), 481.115 (West
2000).
Sanchez acknowledges that his appellate arguments are at
least partially foreclosed by Hinojosa-Lopez but argues that a
determination that he committed a drug-trafficking offense when
he “merely possessed cocaine violates common sense, the rule of
lenity, and the due process requirement of notice and
specificity.” “The rule of lenity . . . applies only when, after
consulting traditional canons of statutory construction, [a court
is] left with an ambiguous statute.” United States v. Shabani,
513 U.S. 10, 17 (1994) (emphasis added). The term “aggravated
felony” was not so ambiguous as to require an application of the
rule of lenity. See Hinojosa-Lopez, 130 F.3d at 693-94.
Sanchez’s due process argument also is unconvincing.
Sanchez is challenging a sentencing guideline, not 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).
No. 99-20933
-3-
This appeal borders on being frivolous. We caution counsel.
Counsel has no duty to bring frivolous appeals; the opposite is
true. See United States v. Burleson, 22 F.3d 93, 95 (5th Cir.
1994).
The judgment of the district court is AFFIRMED.