United States v. Vallejo-Ocampo

• Court: Court of Appeals for the Fifth Circuit
• Decided: November 21, 2001
• Docket: 01-50312
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 01-50312 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

OSIEL VALLEJO-OCAMPO,

Defendant- Appellant.

-------------------------------------------------------- Appeal from the United States District Court for the Western District of Texas USDC No. A-00-CR-275-ALL-SS -------------------------------------------------------- November 20, 2001

Before DAVIS, BENAVIDES and STEWART, Circuit Judges:

PER CURIAM:1

Osiel Vallejo-Ocampo appeals his sentence following his guilty-plea conviction for illegal

reentry into the United States, in violation of 8 U.S.C. § 1326. He argues that the district court erred

in increasing his base offense level by 16 levels pursuant to the aggravated-felony enhancement in

U.S.S.G. § 2L1.2(b)(1)(A) based on his prior Texas convictions for cocaine possession. Vallejo

contends that his prior convictions do not meet the definition of an aggravated felony as set forth in

the current version of 8 U.S.C. § 1101(a)(43)(B). He additionally maintains that the rule of lenity

requires that 8 U.S.C. § 1101(a)(43)(B) be interpreted in his favor.

1 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. Vallejo’s argument that his Texas convictions for possession of cocaine do not qualify as

aggravated felonies for purposes of U.S.S.G. § 2L1.2(b)(1)(A) is foreclosed by our decision in United

States v. Hinojosa-Lopez, 130 F.3d 691, 693-94 (5th Cir. 1997). See United States v. Hernandez-

Avalos, 251 F.3d 505, 508 (5th Cir. 2001), petition for cert. filed, (U.S. Aug. 9, 2001)(No. 01-5773).

Vallejo’s argument that Hinojosa-Lopez is not controlling because the current version of 8 U.S.C.

§ 1101(a)(43)(B) does not refer to subsection two of 18 U.S.C. § 924(c) is unpersuasive. The

current version of 18 U.S.C. § 1101(a)(43)(B) provides that an aggravated felony includes “any drug

trafficking crime as defined in section 924(c) of Title 18” (emphasis added). The definition of the

term “drug trafficking crime” is found specifically at subsection two of 18 U.S.C. § 924(c). See 18

U.S.C. § 924(c)(2). Moreover, by deleting the reference to subsection two of 18 U.S.C. § 924(c),

Congress expanded the definition of aggravated felony to include all subsections of 18 U.S.C.

§ 924(c). See Notes following 8 U.S.C. § 1101 regarding 1994 amendment; see also United States

v. Valenzuela-Escalante, 130 F.3d 944, 946 (10th Cir. 1997).

Vallejo’s argument that the rule of lenity must be applied is foreclosed by our recent decision

in United States v. Rivera, ___ F.3d ___, 2001 WL 1025808 at *1 (5th Cir. Sept. 7, 2001)(No. 00-

20953).

AFFIRMED.