IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 16, 2009
No. 08-40779
Conference Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
CRUZ ALFARO-CARDENAS
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:08-CR-280-ALL
Before SMITH, BENAVIDES, and HAYNES, Circuit Judges.
PER CURIAM:*
Cruz Alfaro-Cardenas (Alfaro) appeals the sentence imposed following his
guilty plea conviction of violating 8 U.S.C. § 1326 by being found in the United
States without permission, following removal. He contends that the district
court erred by enhancing his sentence pursuant to United States Sentencing
Guideline § 2L1.2(b)(1)(C). Citing Lopez v. Gonzales, 549 U.S. 47 (2006), Alfaro
contends that his second state conviction of possessing a controlled substance is
*
Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
No. 08-40779
not a “drug trafficking offense” and thus is not an “aggravated felony” as that
term is defined in 8 U.S.C. § 1101(a)(43) for purposes of § 2L1.2(b)(1)(C). He
argues that his second state possession offense does not correspond to a felony
violation of the Controlled Substances Act as required by Lopez because
recidivist proceedings were not invoked in his case.
In United States v. Sanchez-Villalobos, 412 F.3d 572, 577 (5th Cir. 2005),
this court held that a second state offense of possessing a controlled substance
is considered an “aggravated felony” for purposes of § 2L1.2(b)(1)(C) because
such an offense, if charged in federal court, could be punished as a felony under
21 U.S.C. § 844(a). In light of Sanchez-Villalobos, the district court did not err
by enhancing Alfaro’s sentence under § 2L1.2(b)(1)(C). See also § 844(a)
(providing that simple possession is punishable as a felony if the defendant
commits the offense after a prior conviction for any drug, narcotic, or chemical
offense chargeable under the law of any State has become final). In United
States v. Cepeda-Rios, 530 F.3d 333, 335-36 (5th Cir. 2008), this court affirmed
a defendant’s sentence based on Sanchez-Villalobos and held that the Supreme
Court’s decision in Lopez did not require it to abandon the holding in that case.
Alfaro concedes that his argument is foreclosed by this court’s decision in
Cepeda-Rios. He raises his argument solely to preserve it for Supreme Court
review.
Alfaro does not allege that the district court committed any other
procedural error in imposing his sentence and does not allege that his sentence
is substantively unreasonable. See Gall v. United States, 128 S. Ct. 586, 597
(2007). Accordingly, the judgment of the district court is AFFIRMED.
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