United States v. Ramirez

Opinion

No. 99-40820 -1-

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 99-40820 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ALFREDO RAMIREZ,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. L-98-CR-1056-1 -------------------- February 16, 2000

Before EMILIO M. GARZA, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:*

Alfredo Ramirez has appealed the sentence imposed following

entry of his guilty plea to an indictment charging him with

illegally entering the United States after being deported to

Mexico. Because Ramirez had previously been convicted in Texas

state court for possession of marijuana, the district court

sentenced Ramirez as an "aggravated felon" under U.S.S.G.

§ 2L1.2(b)(1)(A).

In United States v. Hinojosa-Lopez, 130 F.3d 691, 693-94

(5th Cir. 1997) (applying § 2L1.2 comment. (n.7)), the court held

that the appellant's state-court conviction for possession of

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 99-40820 -2-

marijuana constituted an "aggravated felony," for purposes of

§ 2L1.2(b)(1)(A), because it was punishable under the Controlled

Substances Act and was a felony under Texas state law. The

rationale of Hinojosa-Lopez applies to this case and forecloses

Ramirez’ contentions to the contrary.

Ramirez argues that the term “drug trafficking” in 8 U.S.C.

§ 1101(a)(43)(B), is unconstitutionally vague because a person of

reasonable intelligence could not be expected to understand it to

include simple possession of marijuana. He urges that the common

usage of the word “trafficking” connotes some type of

distribution, manufacture, and importation. Ramirez'

constitutional argument is unfounded because his 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).

AFFIRMED.