United States v. Examine Aurelien

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 05-15414 APRIL 11, 2006
Non-Argument Calendar THOMAS K. KAHN
CLERK
________________________

D. C. Docket No. 05-20323-CR-DLG

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

EXAMINE AURELIEN,

Defendant-Appellant.

________________________

Appeal from the United States District Court
for the Southern District of Florida
_________________________

(April 11, 2006)

Before TJOFLAT, BLACK and MARCUS, Circuit Judges.

PER CURIAM:
 Examine Aurelien appeals his sentence imposed after he pled guilty to

illegal re-entry after deportation. At sentencing, the district court enhanced his

base offense level under U.S.S.G. § 2L1.2(b)(1)(C) based on a prior state felony

conviction for possession of cocaine. Aurelien asserts this Court should overrule

its precedent and find an “aggravated felony” under § 2L1.2(b)(1)(C) does not

include state felonies that would only be punishable as a federal misdemeanor.

We review a district court’s interpretation of the Guidelines de novo. United

States v. Simon, 168 F.3d 1271, 1272 (11th Cir. 1999). Under § 2L1.2(b)(1)(C), if

a defendant was deported previously after a "conviction for an aggravated felony,"

the base offense level should be increased by eight levels. In Simon, we held a

drug offense meets the definition of “aggravated felony” if two criteria are met:

(1) the offense must be punishable under the Controlled Substances Act, and

(2) the offense must be a felony. Simon, 168 F.3d at 1272. Simon held a state

felony conviction for possession of cocaine satisfied these two criteria, and

therefore qualified as an “aggravated felony.” Id. “[O]nly the Supreme Court or

this Court sitting en banc can judicially overrule a prior panel decision.” United

States v. Marte, 356 F.3d 1336, 1344 (11th Cir. 2004).

Aurelien's argument is foreclosed by our decision in Simon. The district

court enhanced Aurelien’s base offense level because he had a prior Florida state

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conviction for possession of cocaine, which, under Simon, is an “aggravated

felony.” Simon, 168 F.3d 1272. To the extent Aurelien argues this Court should

overrule the prior panel decision, that argument is without merit as only the

Supreme Court or this Court sitting en banc may do so. Marte, 356 F.3d 1344.

The district court did not err in following Simon and applying U.S.S.G.

§ 2L1.2(b)(1)(C). Accordingly, we affirm Aurelien’s sentence.

AFFIRMED.

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