United States v. Arevalo-Sanchez , 296 F. App'x 427 ( 2008 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 21, 2008
No. 07-40684
Conference Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
JUAN AREVALO-SANCHEZ, also known as Javier Cuevas-Karr
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:05-CR-864-1
Before KING, BARKSDALE, and OWEN, Circuit Judges.
PER CURIAM:*
Juan Arevalo-Sanchez pleaded guilty to being an alien unlawfully found
in the United States after deportation and following a conviction for an
aggravated felony. See 8 U.S.C. § 1326(a), (b). On resentencing, the district
court sentenced him to a 30-month term of imprisonment.
Arevalo-Sanchez argues that the district court erred in increasing his
guidelines offense level by eight levels under U.S.S.G. § 2L1.2(b)(1)(C). He
*
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should not be published and is not precedent except under the limited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. 07-40684
argues that the district court erred in treating his second state conviction for
simple possession of cocaine as 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), 851. He argues that he was deprived of
notice and proof of the prior conviction and of the opportunity to challenge the
fact, finality, and validity of the prior conviction.
Lopez v. Gonzales, 549 U.S. 47, 127 S. Ct. 625, 633 (2006), 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).
A failure to comply with the procedural requirements of § 851(a) in obtaining the
second drug possession conviction does not prohibit the district court from
enhancing a sentence on this basis. See id. at 336 n.11.
Although Arevalo-Sanchez argues that his second state offense did not
qualify as an aggravated felony because he was not given the opportunity to
challenge the fact, finality, and validity of the prior conviction, he provided no
basis in the district court either at the original sentencing hearing or on
resentencing, and provides no basis on appeal, for challenging the fact, finality,
or validity of the prior conviction. See Cepeda-Rios, 530 F.3d at 336 n.11 (noting
that Cepeda-Rios “had the opportunity to object to the finality of his first state
possession conviction at his federal sentencing hearing, but he did not do so”).
AFFIRMED.
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