United States v. Aguilar-Perez

• Court: Court of Appeals for the Fifth Circuit
• Decided: March 19, 2003
• Docket: 02-20659
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 02-20659 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JULIO CESAR AGUILAR-PEREZ

Defendant-Appellant

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. H-01-CR-851-1 -------------------- March 18, 2003

Before JONES, STEWART and DENNIS, Circuit Judges.

PER CURIAM:*

Julio Cesar Aguilar-Perez appeals his sentence after pleading

guilty to illegally reentering this country, in violation of 8

U.S.C. § 1326(a), (b)(2). Aguilar argues that the district court

erred in applying an eight-level increase to his base offense level

for a prior conviction for simple possession of cocaine. He argues

that mere possession is not an aggravated felony under the

Sentencing Guidelines. This argument is foreclosed by our decision

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 02-20659 -2-

in United States v. Caicedo-Cuero, 312 F.3d 697, 706-09 (5th Cir.

2002). There we held that simple drug possession is an aggravated

felony under 8 U.S.C. § 1326(b)(2) and U.S.S.G. § 2L1.2. Id. at

708.

Aguilar also argues that the term “aggravated felony” is

unconstitutionally vague and that the rule of lenity should operate

to reduce his sentence. The meaning of “aggravated felony” is

unambiguous; the rule of lenity is not applicable here. See United

States v. Rivera, 265 F.3d 310, 312 (5th Cir. 2001) (citing United

States v. Hinojosa-Lopez, 130 F.3d 691, 693-94 (5th Cir. 1997)).

The district court did not err when it increased Aguilar’s base

offense level by eight levels due to his prior possession

conviction.

Next, Aguilar argues that the district court erred by not

stating in open court its reasons for sentencing him to 37 months’

imprisonment within a guideline range of 30 to 37 months. When, as

here, the spread of an applicable Guideline range is less than 24

months, the district court is not required to state its reasons for

imposing a sentence at a particular point within the applicable

range. See United States v. Matovsky, 935 F.2d 719, 721 (5th Cir.

1991).

Last, Aguilar argues that the district court erred when it

denied his request for a downward departure. We review a refusal

to depart only if the district court erroneously believed it lacked

the authority to depart. United States v. Davis, 226 F.3d 346, 359 No. 02-20659 -3-

(5th Cir. 2000). There must be “something in the record [to]

indicate that the district court held such an erroneous belief.”

United States v. Landerman, 167 F.3d 895, 899 (5th Cir. 1999).

There is no indication in the record that the court believed it

lacked authority to depart. The judgment of the district court is

AFFIRMED.