United States v. Oropez-Gonzalez

• Court: Court of Appeals for the Fifth Circuit
• Decided: April 23, 2003
• Docket: 02-20193
• Status: Unpublished

Opinion

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS April 23, 2003 FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk

No. 02-20193 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

REFUGIO RAUL OROPEZ-GONZALEZ,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. H-01-CR-171-1 --------------------

Before DAVIS, BARKSDALE, and STEWART, Circuit Judges.

PER CURIAM:*

Refugio Raul Oropez-Gonzalez (Oropez) appeals the sentence

for his conviction of having been present illegally in the

United States after being convicted of an aggravated felony and

deported. We DISMISS the appeal.

Oropez’s sole appellate contention is that the district

court erred by imposing a 16-level enhancement under U.S.S.G.

§ 2L1.2(b)(1)(A), because the Texas felony of possessing

a controlled substance is not a “crime of violence” under

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 02-20193 -2-

18 U.S.C. § 16 and therefore not a 16-level “aggravated

felony.” Oropez did not receive a 16-level enhancement,

however; he received an eight-level increase under U.S.S.G.

§ 2L1.2(b)(1)(C)(2001).

This court recently held that the Texas jail felony of

simple possession of marijuana is a “drug-trafficking crime” and

therefore an “aggravated felony” under § 2L1.2(b)(1)(C)(2001).

Therefore such a prior conviction (in Oropez’s case, involving

cocaine possession) requires enhancement by eight levels for a

subsequent conviction of illegal entry into the United States.

United States v. Caicedo-Cuero, 312 F.3d 697, 706-11 (5th Cir.

2002), petition for cert. filed, (U.S. Mar. 19, 2003)(No. 02-

9747). Accordingly, Oropez’s reliance on the fact that simple

possession of cocaine is not a “crime of violence” is misplaced

and we DISMISS his appeal as frivolous. See 5TH CIR. R. 42.2.

DISMISSED.