IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-20247
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
PABLO JARAMILLO-PONCE,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-99-CR-595-1
--------------------
October 19, 2000
Before SMITH, BARKSDALE, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Pablo Jaramillo-Ponce (Jaramillo) appeals the sentence
imposed following his guilty-plea conviction for illegal reentry
into the United States in violation of 8 U.S.C. § 1326.
Jaramillo argues that his prior felony conviction was an element
of the offense of conviction. Jaramillo acknowledges that his
argument is foreclosed by Almendarez-Torres v. United States, 523
U.S. 224 (1998), but he seeks to preserve the issue for Supreme
Court review in light of Apprendi v. New Jersey, 120 S. Ct. 2348
*
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that this opinion should not be published and is not precedent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. 00-20247
-2-
(2000). This argument is foreclosed by Almendarez-Torres, 523
U.S. at 235.
Jaramillo also challenges a sixteen-level increase to his
base offense level pursuant to U.S.S.G. § 2L1.2(b)(1)(A).
Jaramillo’s argument that possession of marijuana 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). Jaramillo argues that this
issue is not foreclosed by Hinojosa-Lopez because he raises it as
a rule-of-lenity argument. "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). It follows from our decision in Hinojosa-Lopez that the
term "aggravated felony" is not so ambiguous as to require an
application of the rule of lenity. See Hinojosa-Lopez, 130 F.3d
at 693-94.
The judgment of the district court is AFFIRMED.