IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
February 6, 2009
No. 07-11309
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
MARIA IZAGUIRRE-MEZA
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:07-CR-155-ALL
Before GARZA, DeMOSS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Defendant-Appellant Maria Izaguirre-Meza appeals the 36-month
sentence imposed following her guilty plea conviction for illegal reentry after
removal from the United States in violation of 8 U.S.C. § 1326(a) & (b)(2). She
argues that the district court erred in determining that her prior state
convictions for possession of a controlled substance were aggravated felonies for
purposes of U.S. SENTENCING GUIDELINES MANUAL § 2L1.2(b)(1)(C) (2006). She
argues that because her state possession convictions were not subject to a state
*
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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 07-11309
recidivist enhancement, they should not be considered an aggravated felony for
sentencing purposes under § 2L1.2(b)(1)(C). She also argues that the procedural
safeguards mandated under federal and state law for application of a recidivist
enhancement were not satisfied. She acknowledges United States v.
Cepeda-Rios, 530 F.3d 333, 335-36 (5th Cir. 2008), but argues that it did not
address the notice issues presented in this case.
In Cepeda-Rios, 530 F.3d at 335-36, we held that Lopez v. Gonzales, 549
U.S. 47 (2006), did not require that this court abandon its holding in United
States v. Sanchez-Villalobos, 412 F.3d 572, 577 (5th Cir. 2005), that a second
state conviction for simple possession qualified as an aggravated felony, which
supported the imposition of the eight-level enhancement under § 2L1.2(b)(1)(C).
Similarly, Izaguirre-Meza has four prior state convictions for possession of a
controlled substance, at least two of which if filed in federal court would have
been punishable as a felony under § 844(a). Thus, the district court did not err
in determining that at least one of her prior convictions may be treated as an
aggravated felony for sentencing purposes under § 2L1.2(b)(1)(C). See Cepeda-
Rios, 530 F.3d at 335-36.
We also rejected Cepeda-Rios’s argument that the Government’s failure
to comply with the procedural requirements of § 851(a) prohibited the district
court from enhancing his sentence under § 844(a) based on his first state
possession conviction. Id. at 335-36 & n.11. This court noted that the relevant
inquiry was whether the crime was punishable under § 844(a), rather than
whether the Government actually sought to prosecute the defendant under
§ 844(a). Id. This court observed further that “Cepeda-Rios had the opportunity
to object to the finality of his first state possession conviction at his federal
sentencing hearing, but he did not do so.” Id. Likewise, Izaguirre-Meza did not
challenge the existence, validity, or finality of her prior state possession
convictions at her federal sentencing hearing or on appeal. Because the
Government did not actually seek to prosecute Izaguirre-Meza under the
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No. 07-11309
Controlled Substances Act, and was not a party to Izaguirre-Meza’s state court
convictions, § 851(a) notice was not necessary. See id. Further, in Lopez, the
Supreme Court held that the sentencing court “must look only to whether [a
defendant’s] conviction would be considered an ‘aggravated felony’ under federal
law; whether the crime is classified as a felony or misdemeanor by the state of
conviction is irrelevant.” See id. at 334. Similarly, the state notice requirements
are also irrelevant to the determination of whether the § 2L1.2 enhancement is
warranted. See id.
AFFIRMED.
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