United States v. Morales-Cervantes ( 2003 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
DEC 10 2003
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 03-4159
ORLANDO MORALES-CERVANTES, (D.C. No. 2:03-CR-162-DKW)
also known as Orlando Morelos- (D. Utah)
Cervantes,
Defendant-Appellant.
ORDER AND JUDGMENT*
Before KELLY, BRISCOE, and LUCERO, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of this
appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered
submitted without oral argument.
Defendant Orlando Morales-Cervantes appeals the sentence imposed after his plea
*
This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
of guilty to illegally reentering the United States in violation of 18 U.S.C. § 1326. We
exercise jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.
The district court sentenced defendant to a fifteen-month prison term, followed by
three years of supervised release. In calculating the appropriate sentence under the
guidelines, the court imposed an eight-level enhancement pursuant to U.S.S.G.
§ 2L1.2(b)(1)(C) (providing if defendant previously was deported after “a conviction for
an aggravated felony, increase by 8 levels”). The enhancement was based on the court's
conclusion that defendant's prior state felony conviction for possession of
methamphetamine constituted an “aggravated felony.” His conviction for possession of
methamphetamine was a third degree felony under Utah law and he was sentenced to 0-5
years' imprisonment.
The sole question in this case is whether the district court erred in concluding that
a state felony conviction for simple possession of a controlled substance is an “aggravated
felony” for purposes of U.S.S.G. § 2L1.2(b)(1)(C). We review the district court's
interpretation of the sentencing guidelines de novo. United States v. Holbert, 285 F.3d
1257, 1259 (10th Cir. 2002). The defendant argues possession of a controlled substance
should only be treated as an aggravated felony for enhancement purposes if a firearm was
involved.
This case is indistinguishable from United States v. Castro-Rocha, 323 F.3d 846(10th Cir. 2003). In Castro-Rocha, we affirmed the district court's application of
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§ 2L1.2(b)(1)(C) based on the defendant's prior state conviction for possession of
cocaine. In that case, the defendant argued his “state felony conviction for simple
possession of a controlled substance” did not constitute an “aggravated felony.” Id. at
848. We rejected that argument, concluding “the Sentencing Commission intended that
state felony convictions for simple possession qualify for the eight-level enhancement set
out in § 2L1.2(b)(1)(C).” Id. at 851.
Defendant concedes that Castro-Rocha is directly on point but contends it was
wrongly decided. “Under the doctrine of stare decisis, this panel cannot overturn the
decision of another panel of this court.” United States v. Meyers, 200 F.3d 715, 720
(10th Cir. 2000). Therefore, we hold that the district court did not err in applying the
eight-level enhancement pursuant to § 2L.1.2(b)(1)(C) based on defendant's prior state
conviction for possession of methamphetamine.1
AFFIRMED.
Entered for the Court
Mary Beck Briscoe
Circuit Judge
1
In the prayer of his brief, defendant requests that this court grant his petition for
en banc hearing. Such a petition has not been filed with the court. Further, its filing prior
to the issuance of this order and judgment would have been premature. See Fed. R. App.
Proc. 35.
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