United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT January 3, 2007
Charles R. Fulbruge III
Clerk
No. 05-41627
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
PABLO ESTRADA-MENDOZA, also known as Ignacio Chavez-Mendoza,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:05-CR-997-ALL
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Before HIGGINBOTHAM, SMITH, and DEMOSS, Circuit Judges.
PER CURIAM:
Pablo Estrada-Mendoza (Estrada) pleaded guilty to illegal
reentry after deportation in violation of 8 U.S.C. § 1326(a) and
(b)(2). Estrada’s presentence investigation report (PSR) set his
base offense level at 8 and added 8 levels for his prior Texas
felony conviction for possession of a controlled substance, which
the PSR characterized as an “aggravated felony” under U.S.S.G. §
2L1.2(B)(1)(C). After a 3-level reduction for acceptance of
responsibility, Estrada’s total offense level was 13. With a
criminal history category of VI, his sentencing guidelines
imprisonment range was 33 to 41 months.
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Estrada objected to the 8-level increase for the controlled
substance offense on the ground that it should not be considered an
aggravated felony because, although it was a felony under Texas
law, it would be a misdemeanor under the federal Controlled
Substances Act (CSA). The district court overruled the objection
and sentenced Estrada to serve 33 months in prison. Applying the
recent decision of the Supreme Court in Lopez v. Gonzales, 2006 WL
3487031 (U.S. Dec. 5, 2006), we vacate in part and remand for
resentencing.
The district court’s ruling on Estrada’s objection was
consistent with our holding in United States v. Hinojosa-Lopez, 130
F.3d 691 (5th Cir. 1997). In that case, we held that the § 2L1.2
increase for an aggravated felony is proper for a prior state
felony drug conviction even though the same conduct would be a
misdemeanor under the CSA. Hinojosa-Lopez, 130 F.3d at 693-94.
This court has repeatedly relied on the holding of
Hinojosa-Lopez to dispose of criminal cases with the same issue.
One of those cases is United States v. Toledo-Flores, 149 F. App’x
241, 242 (5th Cir. 2005). Reymundo Toldeo-Flores had been
convicted of illegal entry. On appeal, he argued that his state
felony conviction for possession of cocaine did not qualify as an
aggravated felony because it was a misdemeanor under the CSA. We
affirmed, relying on Hinojosa-Lopez. Id.
In an unrelated case, the Eighth Circuit affirmed the Board of
Immigration Appeals’ order removing alien Jose Antonio Lopez on the
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ground that he had previously been convicted of an aggravated
felony under the Immigration and Nationality Act (INA). Lopez v.
Gonzales, 417 F.3d 934, 937 (8th Cir. 2005). Lopez’s aggravated
felony was a state drug felony, but the same conduct would be a
misdemeanor under the CSA. Id.
Both Toledo-Flores and Lopez petitioned the Supreme Court for
writs of certiorari, arguing that Hinojosa-Lopez and similar cases
were wrongly decided. Brief of Petitioner, Toledo-Flores v. United
States, No. 05-7664, 2005 WL 3940988, *11 (U.S. Nov. 15, 2005);
Brief of Petitioner, Lopez v. Gonzales, No. 05-547, 2005 WL
2875037, *13-15 (U.S. Oct. 31, 2005). The Supreme Court granted
certiorari in both cases and heard oral argument in both on the
same day. Toledo-Flores v. United States, 126 S. Ct. 1652 (2006);
Lopez v. Gonzales, 126 S. Ct. 1651 (2006). The Supreme Court
thereafter dismissed the writ of certiorari in Toledo-Flores as
improvidently granted, 2006 WL 3487254 (Dec. 5, 2006), and, on the
same day, issued an opinion in Lopez, 2006 WL 3487031.
The Supreme Court began its opinion by stating that whether a
crime is an “aggravated felony” has implications under both the
section of the INA at issue in that case and the section of the
Guidelines at issue in this one, the latter because the Guidelines
adopted the INA definition of “aggravated felony.” Id. at *2. It
then stated that it had granted certiorari in Lopez to resolve a
circuit split, citing Hinojosa-Lopez and other cases, both criminal
and immigration. Id. at *3 n.3. The Court then analyzed whether
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an alien may be penalized under the INA for an “aggravated felony”
when the crime was a felony under state law but would be a
misdemeanor under the CSA. Id. at *3-7.
The Supreme Court’s analysis began with the provision of the
INA that penalizes an alien for a prior “aggravated felony” if the
alien had been convicted of “illicit trafficking in a controlled
substance...including a drug trafficking crime (as defined in
section 924(c) of title 18).” 8 U.S.C. § 1101(a)(43)(B); Lopez,
2006 WL 3487031, *3. Under 18 U.S.C. § 924(c), “the term ‘drug
trafficking crime’ means any felony punishable under the Controlled
Substances Act . . . .” Lopez, 2006 WL 3487031, *3. Mere
possession of a controlled substance is not a felony under the CSA.
21 U.S.C. § 844(a); Lopez, 2006 WL 3487031, *3. The Supreme Court
held, therefore, that the INA, 8 U.S.C. § 1101(a)(43)(B), does not
penalize an alien for mere possession of a controlled substance.
Lopez, 2006 WL 3487031, *7. The Court reversed the Eight Circuit’s
judgment affirming the BIA’s order removing Lopez. Id.
Given the Court’s reference to the Guidelines, its citation to
Hinojosa-Lopez, and its interpretation of a phrase directly adopted
by the Guidelines, Lopez ineluctably applies with equal force to
immigration and criminal cases. The Government agrees. As Estrada
was sentenced under now-rejected jurisprudence, we vacate his
sentence and remand for resentencing.
Estrada also challenges his conviction and sentence by arguing
that, in light of Apprendi v. New Jersey, 530 U.S. 466 (2000), §
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1326(b)’s treatment of prior felony and aggravated felony
convictions as sentencing factors rather than elements of the
offense that must be found by a jury is unconstitutional. This
argument is foreclosed by Almendarez-Torres v. United States, 523
U.S. 224, 235 (1998). See United States v. Garza-Lopez, 410 F.3d
268, 276 (5th Cir.), cert. denied, 126 S. Ct. 298 (2005). Estrada
concedes as much, but he raises the argument to preserve it for
further review.
AFFIRMED IN PART; VACATED IN PART AND REMANDED.1
1
All pending motions are denied.