United States v. Juana Pena-De Juarez

366 F. App'x 491

• Court: Court of Appeals for the Fifth Circuit
• Decided: February 18, 2010
• Docket: 09-40494
• Status: Unpublished

Opinion

PER CURIAM: *

Juana Mireya Pena-De Juarez (Pena) appeals the sentence imposed following her guilty plea conviction of violating 8 U.S.C. § 1326 by being found in the United States without permission, following removal. She contends that the district court erred by enhancing her offense level by eight, pursuant to United States Sentencing Guideline § 2L1.2(b)(l)(C), based on her two state drug possession convic tions. Citing Lopez v. Gonzales, 549 U.S. 47, 127 S.Ct. 625, 166 L.Ed.2d 462 (2006), Pena contends that the definition of “drug trafficking” does not include simple possession offenses and thus her state convictions are not aggravated felonies as that term is defined in 8 U.S.C. § 1101(a)(43) for purposes of § 2L1.2(b)(l)(C). She further argues that her second state drug possession offense does not correspond to a felony violation of the Controlled Substances Act because recidivist proceedings were not invoked in her case.

In United States v. Cepeda-Rios, 530 F.3d 333, 335-36 (5th Cir.2008), we held that, even after Lopez, a second state conviction for simple possession of a controlled substance qualifies as an aggravated felony that supports the imposition of the eight-level enhancement under § 2L1.2(b)(l)(C). Accordingly, the judgment of the district court is AFFIRMED.

* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.