United States Court of Appeals
Fifth Circuit
F I L E D
REVISED JUNE 13, 2005
June 7, 2005
UNITED STATES COURT OF APPEALS
Charles R. Fulbruge III
FIFTH CIRCUIT Clerk
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No. 04-50732
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ALBERTO SANCHEZ-VILLALOBOS, also known as Francisco
Sanchez-Saenz, also known as Alberto Villalobos-Sanchez,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Texas
Before REAVLEY, JONES and GARZA, Circuit Judges.
EMILIO M. GARZA, Circuit Judge:
Alberto Sanchez-Villalobos (“Sanchez-Villalobos”) appeals the sentence he received from his
guilty-plea conviction for illegal re-entry, in violation of 8 U.S.C. § 1326. Sanchez-Villalobos
argues that the district court erred in adding eight offense levels under United States Sentencing
Guidelines (“U.S.S.G.” or the “Guidelines”) § 2L1.2(b)(1)(C), based on a finding that he had been
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previously deported to Mexico subsequent to a conviction of an “aggravated felony.”
I
The material facts are undisputed. Sanchez-Villalobos pleaded guilty in 2004 to the offense
of illegal reentry, in violation of 8 U.S.C. § 1326. In September 2001, Sanchez-Villalobos had been
convicted in Colorado for the offense of possession of a controlled substance (codeine) and was
sentenced to 60 days in custody and was removed from the United States. The offense was classified
as a class 1 misdemeanor by Colorado. COLO. REV. STAT. § 18-1.3-501(1) (2001). The probation
department concluded that because Sanchez-Villalobos’s Colorado offense was punishable by a term
of imprisonment up to 18 months, it was also an aggravated felony. The presentence report (“PSR”)
thus assigned a base offense level of eight for illegal reentry and an eight level increase pursuant to
U.S.S.G. § 2L1.2(b)(1)(C). After an adjustment for acceptance, Sanchez-Villalobos’s total offense
level was 13. Since he was in criminal history category III, the Guideline range was set at 18 to 24
months.
Sanchez-Villalobos objected to the eight level sentence enhancement, arguing that his
conviction for possession of codeine was not a felony under state law because Colorado classified it
as a misdemeanor and that it was not a felony under federal law because simple possession of codeine
is a misdemeanor under 21 U.S.C. § 844(a). The district court overruled his objection and he was
sentenced to 20 months in prison, one year of supervised release, and a $100 special assessment fine.
II
The only issue raised by Sanchez-Villalobos on appeal is whether the district court properly
applied an eight level enhancement under § 2L1.2(b)(1)(C) for an “aggravated felony” based on his
prior Colorado state misdemeanor conviction for possession of codeine.
2
In order to determine whether his prior conviction constitutes an aggravated felony, we must
first track the relevant statutory provisions. Pursuant to U.S.S.G. § 2L1.2(b)(1)(C), a defendant’s
base offense level for the conviction of illegal re-entry is enhanced by eight levels if the defendant has
previously been convicted for an “aggravated felony.” “For the purposes of subsection (b)(1)(C),
‘aggravated felony’ has the meaning given that term in section 1101(a)(43) of the Immigration and
Nationality Act (8 U.S.C. § 1101(a)(43)), without regard to the date of conviction for the aggravated
felony.” U.S.S.G. § 2L1.2 comment. n.3(A). Section 1101(a)(43) of the Immigration and
Nationality Act provides, in pertinent part, that the drug-trafficking crimes outlined in 18 U.S.C. §
924(c) are aggravated felonies. A drug-trafficking crime under § 924(c)(2) is “any felony punishable
under the Controlled Substances Act (21 U.S.C. 810 et seq.).” 18 U.S.C. § 924(c)(2).
This court has held that a “drug trafficking crime” under § 924(c)(2) encompasses two
elements: (1) that the offense be punishable under the Controlled Substances Act (“CSA”), and (2)
that the offense be a felony under either state or federal law. United States v. Hinojosa-Lopez, 130
F.3d 691, 694 (5th Cir. 1997) (quoting United States v. Restrepo-Aguilar, 74 F.3d 361, 364 (1st Cir.
1996)). It is undisputed that Sanchez-Villalobos’s possession of codeine would be punishable under
the CSA, specifically, 21 U.S.C. § 844(a)1, satisfying the first requirement of the two prong test for
a “drug trafficking crime.” Our central task, therefore, is to determine whether Sanchez-Villalobos’s
Colorado state conviction for possession of codeine satisfies the second requirement, that the offense
1
Section 844(a) provides that “[i]t shall be unlawful for any person knowingly or intentionally
to possess a controlled substance unless such substance was obtained directly, or pursuant to a valid
prescription or order, from a practitioner, while acting in the course of his professional practice . .
.” 21 U.S.C. § 844(a). “The term ‘controlled substance’ means a drug or other substance, or
immediate precursor, included in schedule I, II, III, IV, or V of part B of this subchapter.” 21 U.S.C.
§ 802(6). Codeine is a controlled substance. 21 U.S.C. 812.
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is a felony for § 2L1.2 purposes.
A
First, we consider whether a drug offense categorized under state law as a misdemeanor, but
punishable by more than one year in prison, is a qualifying aggravated felony under § 2L1.2(b)(1)(C).
This court has held that a state offense for simple possession of drugs is properly deemed a “felony”
within the meaning of § 924(c)(2) if the offense is classified as a felony under the law of the state,
even if it is only punishable as a misdemeanor by federal law. Hinojosa-Lopez, 130 F.3d at 694;
United States v. Hernandez-Avalos, 251 F.3d 505, 508 (5th Cir. 2001). However, the issue in this
case has never before been brought squarely before this court. The probation department looked to
the application notes of § 2L1.2 that defines “felony” as an offense punishable by imprisonment for
more than one year. However, the Guidelines expressly adopt this definition only for §
2L1.2(b)(a)(1)(A), (B), and (D).
Sanchez-Villalobos argues that § 802(13) of the CSA, which defines “felony” as “any Federal
or State offense classified by applicable Federal or State law as a felony,” provides the proper
definition. 21 U.S.C. § 802(13). The Government asserts, however, t hat the proper definition is
found in § 802(44) of the CSA, which defines “felony drug offense” as “an offense that is punishable
by imprisonment for more than one year under any law of the United States or of a State or foreign
country that prohibits or restricts conduct relating to narcotic drugs, marihuana, anabolic steroids,
or depressant or stimulant substances.” 21 U.S.C. § 802(44).
Whether Sanchez-Villalobos’s offense is an aggravated felony depends on whether § 802(13)
or § 802(44) is applicable. This court has noted the difference in these two definitions before, but
concluded that it was not required to determine which definition was applicable since the defendant’s
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offense was both labeled a felony under state law and punishable by more than one year in prison
under state law. United States v. Caicedo-Cuero, 312 F.3d 697, 702-03 (5th Cir. 2002) (defendant’s
prior Texas offense of simple possession of marijuana was an aggravated felony since Texas
categorized the offense as a felony and provided for a maximum term of imprisonment of two years).2
We noted in Caicedo-Cuero, however, that since this court had relied on the First Circuit’s decision
in United States v. Restrepo-Aguilar, 74 F.3d 361 (1st Cir. 1996), for its holdings in Hinojosa-Lopez
and Hernandez-Avalos, it “suggests that the proper definition of ‘felony’ to apply in this context is
that in § 802(13), which asks only whether the state labeled the crime a felony.” 312 F.3d at 702
n.32.
In Restrepo-Aguilar the First Circuit only considered whether the term “aggravated felony,”
as used in § 2L1.2(b)(2) of the Guidelines, includes as a “felony” a state drug possession offense that
would only be a misdemeanor under federal law, but is a felony under the laws of the convicting state.
74 F.3d at 364-65. This is the same issue that this court decided in Hinojosa-Lopez. 130 F.3d 691.
As was the case in Hinojosa-Lopez, the First Circuit never addressed the question of whether the
“classification” of an offense as a felony is sufficient to qualify as an aggravated felony even if the
maximum authorized punishment would not exceed one year. Although the court in Restrepo-
Aguilar adopted the definition of § 802(13), it was unnecessary to determine which definition was
applicable )) § 802(13) or § 802(44) )) since the defendant’s conviction, as in Caicedo-Cuero, met
the requirements of both definitions. Restrepo-Aguilar, 74 F.3d at 365. The court relied heavily on
the fact that the defendant’s drug possession offense was “fully consistent with the definition of that
2
We note that it was the government in Caicedo-Cuero that championed the definition of
felony found in 21 U.S.C. § 802(13).
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term that pervades the criminal history and prior offense enhancement provisions scattered
throughout the Guidelines: any federal or state offense punishable under applicable law by a term of
imprisonment of more than one year.” Id. at 366.
Only the Ninth and Sixth Circuits have answered this question, holding that a state conviction
is a felony for this purpose only if it is punishable by imprisonment for more than one year. United
States v. Robles-Rodriguez, 281 F.3d 900, 903-05 (9th Cir. 2002); Liao v. Rabbett, 398 F.3d 389,
394-95 (6th Cir. 2005). In Robles-Rodriguez, the Ninth Circuit considered whether an Arizona
statute that described offenses as “felonies” but for which the maximum penalty authorized by law
was probation can be an “aggravated felony.” 281 F.3d at 903. The court reasoned that Congress
could not have meant to rely on the CSA’s definition of “felony” to determine what constitutes a
“drug trafficking offense” because to do so would strip any real meaning from the term “felony drug
offense.” Id. at 904. The court explained that “[i]t is a basic rule of statutory construction that one
provision of a statute should not be interpreted in a manner that renders other sections of the same
statute inconsistent, meaningless or superfluous.” Id. (internal quotation omitted). Therefore,
reading the definitions in §§ 802(13) and (44) together, the court concluded that the term “felony”
referred to offenses punishable by more than one year imprisonment under the applicable state or
federal law. Id. In addition, the court noted that federal law traditionally equates the term felony
with offenses punishable by more than one year imprisonment. Id. (citing United States v. Urias-
Escobar, 281 F.3d 165, 167-68 (5th Cir. 2002)). The court also relied on “the Seventh Circuit’s
observation that ‘the punishment chosen for a crime will more accurately and equitably reflect . . . the
seriousness of that crime than will the crime’s felony/misdemeanor classification.’” Id. at 905
(quoting United States v. Jones, 235 F.3d 342, 346 (7th Cir. 2000)). The Sixth Circuit adopted the
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Ninth Circuit’s reasoning in Robles-Rodriquez. Liao, 398 F.3d at 394-95.
We also find the Ninth Circuit’s reasoning persuasive. Accordingly, we conclude that
Sanchez-Villalobos’s prior conviction satisfies the two elements for a “drug trafficking crime” under
§ 924(c)(2): (1) it is punishable under the CSA and (2) qualifies as a felony because of the punishment
under state law. The district court, therefore, did not err in applying an eight level increase pursuant
to U.S.S.G. § 2L1.2(b)(1)(C) because Sanchez-Villalobos had been previously deported subsequent
to an “aggravated felony.”
B
Furthermore, we can affirm the district court’s judgment because Sanchez-Villalobos’s
Colorado conviction is considered a felony under federal law. Specifically, possession of a controlled
substance is an aggravated felony under § 2L1.2(b)(1)(C) because it can be punished as a felony
under the CSA. An offense punishable by more than one year in prison is a felony under federal law,
18 U.S.C. § 3559(a). Under 21 U.S.C. § 844(a), a defendant who violates the subsection by
possession of a controlled substance “may be sentenced to a term of imprisonment for not more than
1 year, and shall be fined a minimum of $1,000 or both except that if he commits such offense after
a prior conviction for any drug, narcotic, or chemical offense chargeable under the law of any State,
has become final, he shall be sentenced to a term of imprisonment for not less than 15 days, but not
more than 2 years . . . .”
Sanchez-Villalobos was convicted for possession of marijuana in 1997. Because he was
convicted of a prior drug possession offense, his subsequent Colorado conviction for possession of
codeine in 2001 could have been punished under § 844(a) as a felony with a penalty of up to two
years imprisonment. See United States v. Simpson, 319 F.3d 81, 85-86 (2d Cir. 2002) (mere
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possession of a controlled substance can be punished as a felony under the CSA).3 Had the charge
against Sanchez-Villalobos for possession of codeine been brought in federal court, it would not, as
he contends, only have been punishable as a misdemeanor.
III
Sanchez-Villalobos also argues that his sentence violates his Sixth Amendment right to
findings by a jury based on United States v. Booker, 543 U.S.___, 125 S.Ct. 738 (2005), because the
district court assessed sentencing enhancements under the then mandatory sentencing guidelines.
Although he raised this argument before the district court, thus preserving the error, he failed to raise
this argument in his brief to this court. He only raised a Booker claim (based on his Blakely v.
Washington, 124 S.Ct. 2531 (2004) claim raised below) in a FED. R. APP. P. 28(j) letter to this court.
This court will not consider a new claim raised for the first time in an appellate reply brief, or a Rule
28(j) letter. United States v. Prince, 868 F.2d 1379, 1386 (5th Cir. 1989).
IV
For the above stated reasons, we AFFIRM the district court’s judgment.
3
We recognize that the Ninth Circuit takes a contrary position, and considers only “the
sentence available for the crime itself, without enhancements.” United States v. Corona-Sanchez, 291
F.3d 1201, 1209 (9th Cir. 2002); United States v. Arellano-Torres, 303 F.3d 1173, 1178 (9th Cir.
2002) (holding that a court must look at the sentence available for the crime itself, without
considering any recidivist sent encing enhancements when evaluating whether an offense is an
aggravated felony under § 2L1.2).
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