United States v. Montes-Galeas

• Court: Court of Appeals for the Fifth Circuit
• Decided: April 10, 2002
• Docket: 01-40881
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-40881 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

HOMER MONTES-GALEAS,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. L-01-CR-173-ALL -------------------- April 10, 2002

Before SMITH, DeMOSS, and PARKER, Circuit Judges.

PER CURIAM:*

Homer Montes-Galeas appeals his guilty-plea conviction for

illegal reentry into the United States after deportation in

violation of 8 U.S.C. § 1326. He argues that the indictment

violates the Fifth and Sixth Amendments because it did not allege

that Montes-Galeas had the general intent to reenter the United

States. Montes-Galeas’ argument is foreclosed by this court’s

decisions in United States v. Berrios-Centeno, 250 F.3d 294, 298

(5th Cir.), cert. denied, 122 S. Ct. 288 (2001), and United

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 01-40881 -2-

States v. Guzman-Ocampo, 236 F.3d 233, 237-39 (5th Cir. 2000),

cert. denied, 121 S. Ct. 2600 (2001).

Montes-Galeas argues that the rule of lenity requires this

court to interpret the term “drug trafficking” conviction under

U.S.S.G. § 2L1.2(b)(1)(A) and 8 U.S.C. § 1101(a)(43) as excluding

a state conviction for drug possession. We have held that drug

possession convictions are drug-trafficking offenses as defined

by U.S.S.G. § 2L1.2(b)(1)(A), 8 U.S.C. § 1101(a)(43), and

18 U.S.C. § 924(c). See United States v. Hernandez-Avalos,

251 F.3d 505, 507 (5th Cir.), cert. denied, 122 S. Ct. 305

(2001); United States v. Hinojosa-Lopez, 130 F.3d 691, 693-94

(5th Cir. 1997). Because we have determined that the statutes at

issue are not ambiguous, the rule of lenity is not applicable to

this case. See United States v. Shabani, 513 U.S. 10, 17 (1994).

AFFIRMED.