United States v. Mendez-Monroy

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit

FILED
June 16, 2009
No. 08-50790
Conference Calendar Charles R. Fulbruge III
Clerk

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

MIGUEL ANGEL MENDEZ-MONROY

Defendant-Appellant

Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:08-CR-622-ALL

Before SMITH, BENAVIDES, and HAYNES, Circuit Judges.
PER CURIAM:*
Miguel Angel Mendez-Monroy (Mendez) 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), Mendez contends that his third state conviction of possessing a controlled
substance is not a “drug trafficking offense” and thus is not an “aggravated

*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 08-50790

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 third 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 Mendez’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.
Mendez 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.
Mendez 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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