United States v. Gutierrez-Quintanilla , 299 F. App'x 305 ( 2008 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
November 5, 2008
No. 07-40494
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
JORGE LUIS GUTIERREZ-QUINTANILLA
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:06-CR-121-ALL
Before SMITH, STEWART and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Jorge Luis Gutierrez-Quintanilla (Gutierrez) appeals his sentence on
remand following his guilty plea conviction for illegal reentry in violation of 8
U.S.C. § 1326. The district court determined that Gutierrez’s second state law
conviction for possession of marijuana qualified as an “aggravated felony” under
U.S.S.G. § 2L1.2(b)(1)(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should not be published and is not precedent except under the limited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. 07-40494
Gutierrez contends that, in light of the Supreme Court’s decision in Lopez
v. Gonzales, 549 U.S. 47 (2006), and because the Government did not satisfy the
procedural requirements of 21 U.S.C. § 851, his second state law conviction does
not qualify for an aggravated felony enhancement. We recently rejected the
same arguments in United States v. Cepeda-Rios, 530 F.3d 333, 334-36 (5th Cir.
2008).
Gutierrez also argues that district court’s ruling is contrary to the
legislative intent of Congress and the Sentencing Commission, but this
argument is also unavailing in light of Cepeda-Rios. See id. at 335 (discussing
Congressional intent in adopting relevant statutory provisions); § 2L1.2,
comment. (n.3(A)) (adopting the definition of “aggravated felony” contained in
8 U.S.C. § 1101(a)(43) for purposes of § 2L1.2).
AFFIRMED.
2