United States v. Casarez-Herrera ( 2002 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-41305
Summary Calendar
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
SAUL CASAREZ-HERRERA, also known as Saul Herrera-Casares,
also known as Saul Herrera, also known as Saul Casares,
also known as Saul Casarez
Defendant - Appellant
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. C-01-CR-168-1
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July 22, 2002
Before KING, Chief Judge, and WIENER and PARKER, Circuit Judges.
PER CURIAM:*
Saul Casarez-Herrera (“Casarez”) appeals his conviction and
sentence for illegal reentry of a deported alien who was
previously convicted of an aggravated felony in violation of 8
U.S.C. § 1326(a)(2) and (b)(2). Casarez contends that the
district court erred when it rejected his collateral challenge of
the February 1999 deportation order that was used in his 8 U.S.C.
*
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that this opinion should not be published and is not precedent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. 01-41305
-2-
§ 1326 prosecution. He also argues that the district court
erroneously applied U.S.S.G. § 2L1.2(b)(1)(A), resulting in a 16-
level increase to his base offense level, based on a finding that
Texas felony possession of marihuana was an aggravated felony.
Casarez’s collateral challenge of the February 1999
deportation order fails because he has not demonstrated that he
suffered actual prejudice from defects that may have occurred in
the removal proceeding, since he has not shown that “there was a
reasonable likelihood that but for the error complained of . . .
[he] would not have been deported.” See United States v. Lopez-
Vasquez, 227 F.3d 476, 485 (5th Cir. 2000) (internal quotations
and citations omitted). Additionally, Casarez has failed to
demonstrate that he exhausted available administrative remedies
and that the purportedly defective removal proceeding deprived
him of judicial review. See 8 U.S.C. § 1326 (d)(1) and (2);
Lopez-Vasquez, 227 F.3d at 483.
Casarez asserts that his prior conviction for possession of
marihuana is not an aggravated felony or a drug-trafficking
offense and thus the district court erred by increasing his
offense level under U.S.S.G. § 2L1.2. The 2000 version of
Section 2L1.2, the version in effect at the time of sentencing,
authorized a 16-level base offense level increase if the
defendant was previously deported following a conviction for an
aggravated felony. In United States v. Hinojosa-Lopez, 130 F.3d
691, 694 (5th Cir. 1997), we determined that a “prior conviction
No. 01-41305
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constitutes an aggravated felony for purposes of U.S.S.G.
§ 2L1.2(b)(2) if (1) the offense was punishable under the
Controlled Substances Act and (2) it was a felony.” We held that
the defendant’s prior conviction for possession of marihuana,
which was a felony under Texas law and a misdemeanor under
federal law, constituted an aggravated felony for purposes of
U.S.S.G. § 2L1.2(b)(2). Id. Hinojosa-Lopez’s rationale and
holding applies to Casarez’s case. Thus, Casarez’s position is
foreclosed by Hinojosa-Lopez.
The judgment of the district court is AFFIRMED.