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United States v. Aguilar-Perez ( 2003 )


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  •                      IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-20659
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JULIO CESAR AGUILAR-PEREZ
Defendant-Appellant
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-01-CR-851-1
--------------------
March 18, 2003
Before JONES, STEWART and DENNIS, Circuit Judges.
PER CURIAM:*
Julio Cesar Aguilar-Perez appeals his sentence after pleading
guilty to illegally reentering this country, in violation of
    8 U.S.C. § 1326
    (a), (b)(2).            Aguilar argues that the district court
erred in applying an eight-level increase to his base offense level
for a prior conviction for simple possession of cocaine.              He argues
that       mere    possession   is   not   an   aggravated   felony   under   the
Sentencing Guidelines. This argument is foreclosed by our decision
*
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this opinion should not be published and is not precedent except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. 02-20659
-2-
in United States v. Caicedo-Cuero,
    312 F.3d 697
    , 706-09 (5th Cir.
2002).    There we held that simple drug possession is an aggravated
felony under
    8 U.S.C. § 1326
    (b)(2) and U.S.S.G. § 2L1.2.               Id. at
708.
Aguilar also argues that the term “aggravated felony” is
unconstitutionally vague and that the rule of lenity should operate
to reduce his sentence.          The meaning of “aggravated felony” is
unambiguous; the rule of lenity is not applicable here.            See United
States v. Rivera,
    265 F.3d 310
    , 312 (5th Cir. 2001) (citing United
States v. Hinojosa-Lopez,
    130 F.3d 691
    , 693-94 (5th Cir. 1997)).
The district court did not err when it increased Aguilar’s base
offense    level   by   eight    levels   due   to   his   prior   possession
conviction.
Next, Aguilar argues that the district court erred by not
stating in open court its reasons for sentencing him to 37 months’
imprisonment within a guideline range of 30 to 37 months.            When, as
here, the spread of an applicable Guideline range is less than 24
months, the district court is not required to state its reasons for
imposing a sentence at a particular point within the applicable
range.    See United States v. Matovsky,
    935 F.2d 719
    , 721 (5th Cir.
1991).
Last, Aguilar argues that the district court erred when it
denied his request for a downward departure.           We review a refusal
to depart only if the district court erroneously believed it lacked
the authority to depart.        United States v. Davis,
    226 F.3d 346
    , 359
No. 02-20659
-3-
(5th Cir. 2000).   There must be “something in the record [to]
indicate that the district court held such an erroneous belief.”
United States v. Landerman,
    167 F.3d 895
    , 899 (5th Cir. 1999).
There is no indication in the record that the court believed it
lacked authority to depart.   The judgment of the district court is
AFFIRMED.