United States v. Toledo-Flores ( 2005 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT August 17, 2005
Charles R. Fulbruge III
Clerk
No. 04-41378
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
REYMUNDO TOLEDO-FLORES,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:04-CR-546-ALL
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Before BENAVIDES, CLEMENT, and PRADO, Circuit Judges.
PER CURIAM:*
Reymundo Toledo-Flores (Toledo) appeals the two-year
sentence imposed following his guilty-plea conviction for
improper entry by an alien. Toledo argues that the district
court erred by imposing the eight-level increase in U.S.S.G.
§ 2L1.2(b)(1)(C) (2003) for having a prior aggravated felony
conviction. Toledo contends that his Texas state conviction for
possession of cocaine is not a qualifying aggravated felony
because it is not a felony under the federal Controlled
*
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this opinion should not be published and is not precedent except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. 04-41378
-2-
Substances Act. Although Toledo conceded before the district
court that this argument was foreclosed by United States v.
Rivera, 265 F.3d 310 (5th Cir. 2001), and United States v.
Hinojosa-Lopez, 130 F.3d 691 (5th Cir. 1997), on appeal he
asserts that these decisions are not binding because they
conflict with Jerome v. United States, 318 U.S. 101 (1943).
Our precedent is clear that Congress has made a “deliberate
policy decision to include as an ‘aggravated felony’ a drug crime
that is a felony under state law but only a misdemeanor under the
[Controlled Substances Act].” United States v. Hernandez-Avalos,
251 F.3d 505, 510 (5th Cir. 2001) (internal quotation marks and
citation omitted). A prior conviction for a state drug offense
will qualify as an aggravated felony under U.S.S.G.
§ 2L1.2(b)(1)(C) if it is punishable under the Controlled
Substances Act and it is punishable by more than a year of
imprisonment under the applicable state law. See United States
v. Sanchez-Villalobos, 412 F.3d 572, 576 (5th Cir. 2005).
Toledo’s prior offense meets this definition. See 21 U.S.C.
§ 844(a) (2003); TEX. HEALTH AND SAFETY CODE ANN. §§ 481.102(3)(D) &
481.115 (Vernon 2001); TEX. PENAL CODE ANN. § 12.35(a) (Vernon
2001). Accordingly, the judgment of the district court is
AFFIRMED.