United States v. Gonzalez-Miranda

• Court: Court of Appeals for the Fifth Circuit
• Decided: December 16, 1999
• Docket: 99-20198
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 99-20198 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

GREGORIO GONZALEZ-MIRANDA,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. H-98-CR-502-1 -------------------- December 15, 1999

Before JOLLY, HIGGINBOTHAM, and BARKSDALE, Circuit Judges.

PER CURIAM:*

Appellant, Gregorio Gonzalez-Miranda, pleaded guilty to re-

entering the United States illegally following deportation.

Gonzalez’s prior deportation followed a conviction in Texas state

court for possession of marijuana, a felony under Texas law. The

district court sentenced him to forty-six months’ imprisonment,

after increasing his base offense level pursuant to U.S.S.G.

§ 2L1.2, which provides a sixteen-level enhancement for a

defendant previously deported following an aggravated felony

conviction.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 99-20198 -2-

Gonzalez contends that his prior conviction should not be

characterized as an aggravated felony because aggravated felonies

are defined by statute as drug trafficking crimes. He further

argues that any interpretation of the term “aggravated felony” to

include simple possession is vague and violates the Due Process

Clause of the Fifth Amendment.

Gonzalez’s argument is foreclosed, as he concedes, by this

court’s prior opinion in United States v. Hinojosa-Lopez, 130

F.3d 691 (5th Cir. 1997). As to his constitutional argument, due

process applies to criminal statutes, requiring that they give

fair notice of proscribed conduct. See United States v. Nevers,

7 F.3d 59, 61 (5th Cir. 1993) (citations omitted). Gonzalez’s

challenge is to a sentencing guideline, not to a criminal

statute. “Due process does not mandate . . . notice, advice, or

a probable prediction of where, within the statutory range, the

guideline sentence will fall.” United States v. Pearson, 910

F.2d 221, 223 (5th Cir. 1991).

For the foregoing reasons, we AFFIRM the judgment of the

district court.

AFFIRMED.