United States v. Alva-Otoya ( 2003 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-21242
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LUIS ALBERTO ALVA-OTOYA,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-01-CR-517-ALL
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February 20, 2003
Before WIENER, EMILIO M. GARZA, and CLEMENT, Circuit Judges.
PER CURIAM:*
Luis Alberto Alva-Otoya pleaded guilty to an indictment
charging him with being found illegally in the United States
following deportation and has appealed his sentence. Alva
contends that his prior state conviction for possession of
cocaine was not an “aggravated felony” under amendments to
U.S.S.G. § 2L1.2(b)(1)(C), which became effective on November 1,
2001. Alva contends that the amendments overruled this court’s
decision in United States v. Hinojosa-Lopez, 130 F.3d 691, 693-94
*
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this opinion should not be published and is not precedent except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. 01-21242
-2-
(5th Cir. 1997). This argument was rejected recently in United
States v. Caicedo-Cuero, 312 F.3d 697, 705-11 (5th Cir. 2002).
Alva states also that he wishes to preserve for possible
further review the question whether simple possession of a
controlled substance is not a “drug trafficking crime” and hence
is not an “aggravated felony” for purposes of 8 U.S.C.
§§ 1101(a)(43)(B) and 1326(b)(2). He concedes that this court
has held to the contrary. See Hinojosa, 130 F.3d at 693-94; see
also Caicedo, 2002 WL 31521599, *8-11. The judgment is
AFFIRMED.