United States v. Pineda-Bonilla ( 2001 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-20097
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JEOVANI PINEDA-BONILLA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-00-CR-566-ALL
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October 29, 2001
Before WIENER, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Jeovani Pineda-Bonilla appeals his sentence following his
guilty-plea conviction for illegal reentry by a previously
deported alien, 8 U.S.C. § 1326(a) and (b)(2). He argues that
the district court erred by increasing his offense level by
sixteen based on his prior conviction for possession of cocaine
because: 1) mere possession of cocaine should not be considered
a “drug trafficking crime”; and 2) the rule of lenity requires
that the term “drug trafficking” to be defined as excluding his
cocaine possession conviction. Pineda-Bonilla concedes that his
*
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that this opinion should not be published and is not precedent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. 01-20097
-2-
arguments are foreclosed by this court’s precedent, and he states
that he raises them here solely for issue preservation purposes.
Pineda-Bonilla’s argument that his Texas conviction for
possession of cocaine does not qualify as an aggravated felony
for purposes of U.S.S.G. § 2L1.2 is foreclosed by our decision in
United States v. Hinojosa-Lopez, 130 F.3d 691, 693-94 (5th Cir.
1997). His assertion that this claim is nonetheless available to
him because he raises it under the rule of lenity is also
unavailing. “The rule of lenity . . . applies only when, after
consulting traditional canons of statutory construction, [a court
is] left with an ambiguous statute.” United States v. Shabani,
513 U.S. 10, 17 (1994). It follows from our decision in
Hinojosa-Lopez that, even if the term “aggravated felony” remains
ambiguous at all, it is not so ambiguous as to require an
application of the rule of lenity. See Hinojosa- Lopez, 130 F.3d
at 693-94. Accordingly, the district court did not err in
determining that Pineda-Bonilla’s prior conviction in Texas for
possession of cocaine qualified as a drug trafficking crime for
purposes of the sentencing enhancement.
AFFIRMED.