IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-40469
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ANTONIO PEREZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. L-00-CR-1301-1
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February 21, 2002
Before JOLLY, JONES, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Antonio Perez appeals his guilty-plea conviction and
sentence for illegal reentry, in violation of 8 U.S.C. § 1326.
He argues, for the first time on appeal, that his indictment
violates the Fifth and Sixth Amendments because it does not
allege general intent. As Perez concedes, however, his argument
is foreclosed. See United States v. Guzman-Ocampo, 236 F.3d 233,
237-39 (5th Cir. 2000), cert. denied, 121 S. Ct. 2600 (2001); see
also United States v. Berrios-Centeno, 250 F.3d 294, 297 (5th
*
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that this opinion should not be published and is not precedent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. 01-40469
-2-
Cir.), cert. denied, 122 S. Ct. 288 (2001). He raises it only to
preserve the issue for Supreme Court review.
Perez next argues that he should not have received a 16-
level sentencing increase, pursuant to U.S.S.G. § 2L1.2(b)(1)(A),
based on his prior conviction for possession of cocaine because
simple possession is not an aggravated felony. This argument is
similarly foreclosed, as Perez also apparently concedes. See
United States v. Hinojosa-Lopez, 130 F.3d 691, 694 (5th Cir.
1997).
Notwithstanding that fact, Perez contends that this court’s
construction of the term “aggravated felony” for purposes of the
16-level enhancement violates the notice and specificity
requirements of the Due Process Clause. Because his challenge is
to a sentencing guideline and not a criminal statute, due process
is not implicated. See United States v. Pearson, 910 F.2d 221,
223 (5th Cir. 1990).
Perez alternatively contends that the rule of lenity
requires this court to construe the term “drug-trafficking
offense,” an operative definition for aggravated felony for
purposes of the 16-level enhancement, to exclude state
convictions for mere possession of drugs such as his own which
would be only misdemeanors under federal law. He concedes that
the argument is also foreclosed but seeks to preserve it for
Supreme Court review. Perez is correct that the argument is
foreclosed. See Hinojosa-Lopez, 130 F.3d at 694; see also
United States v. Rivera, 265 F.3d 301, 312 (5th Cir. 2001);
No. 01-40469
-3-
United States v. Hernandez-Avalos, 251 F.3d 505, 508-10 & n.2
(5th Cir.), cert. denied, 122 S. Ct. 305 (2001).
The district court’s judgment is AFFIRMED. His motion to
supplement the appellate record with a copy of his objections to
the PSR is DENIED as unnecessary.
AFFIRMED; MOTION DENIED.