United States v. Hernandez-Garcia ( 2001 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-20388
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ALFREDO HERNANDEZ-GARCIA,
Defendant-Appellant.
__________________________________________
Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-00-CR-803-1
__________________________________________
November 1, 2001
Before POLITZ, SMITH, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Alfredo Hernandez-Garcia appeals his sentence following a guilty plea to
illegal entry after deportation under 8 U.S.C. § 1326(b)(2).
Hernandez also challenges the characterization of his prior Texas conviction
of cocaine possession as an “aggravated felony” offense and the concomitant
16-level increase in his base offense level under U.S.S.G. § 2L1.2(b)(1)(A),
*
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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
contending that the rule of lenity requires that a state conviction for mere possession
should qualify as a misdemeanor under federal law and thus not be considered a
“felony.” In United States v. Hinojosa-Lopez,1 we held that a state conviction is an
“aggravated felony” under § 2L1.2(b)(1)(A) if “(1) the offense was punishable
under the Controlled Substances Act, and (2) it was a felony” under applicable state
law.2 Hernandez has not explicitly disputed, as a matter of statutory construction,
that his challenge to the § 2L1.2(b)(1)(A) increase is foreclosed by
Hinojosa-Lopez.3 Hernandez’s contention that Hinojosa-Lopez did not address a
rule-of-lenity argument is unavailing.4
The judgment of the district court is AFFIRMED.
1
130 F.3d 691 (5th Cir. 1997),
2
Id. at 694.
3
United States v. Garcia Abrego, 141 F.3d 142, 151 n.1 (5th Cir. 1998) (“in the absence
of any intervening Supreme Court or en banc circuit authority that conflicts” with the panel
decision in question, this court is bound by the panel decision).
4
United States v. Santos Rivera, F.3d (5th Cir. Sept. 7, 2001, No. 00-20953), 2001
WL 1025808 at *1 (rule of lenity is a rule of statutory construction, rather than a separate
constitutional framework for raising claims, and would not alter this court’s interpretation of term
“aggravated felony” in our decision in Hinojosa-Lopez).
2