United States v. Mendoza-Gallardo , 296 F. App'x 412 ( 2008 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 21, 2008
No. 08-50010
Conference Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
JUAN JOSE MENDOZA-GALLARDO, also known as Juan Jose Mendoza-
Castillo
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:07-CR-1342-ALL
Before KING, BARKSDALE, and OWEN, Circuit Judges.
PER CURIAM:*
Juan Jose Mendoza-Gallardo (Mendoza) pleaded guilty to illegal reentry
after deportation and was sentenced to 24 months of imprisonment and three
years of supervised release.
Mendoza argues on appeal that the district court erred in increasing his
guidelines offense level by eight levels under U.S.S.G. § 2L1.2(b)(1)(C) based on
its characterization of the more recent of his two prior state drug possession
*
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should not be published and is not precedent except under the limited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. 08-50010
convictions as an aggravated felony. Citing Lopez v. Gonzales, 549 U.S. 47
(2006), he contends that the more recent state drug possession conviction could
not constitute an aggravated felony because the State did not plead and prove
that he was a recidivist when it obtained the conviction, as is required under 21
U.S.C. §§ 844(a) and 851.
Lopez has not altered our holding in United States v. Sanchez-Villalobos,
412 F.3d 572 (5th Cir.2005), that a second state conviction for simple possession
qualifies as an aggravated felony sufficient to support the imposition of the
eight-level enhancement under § 2L1.2(b)(1)(C). United States v. Cepeda-Rios,
530 F.3d 333, 335 (5th Cir. 2008). The State’s failure to comply with the
procedural requirements of §§ 844(a) and 851(a) in obtaining the second drug
possession conviction does not prohibit the district court from enhancing a
sentence on this basis. Id. at 336 n.11.
AFFIRMED.
2