United States v. Montes-Galeas

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-40881
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
HOMER MONTES-GALEAS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. L-01-CR-173-ALL
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April 10, 2002
Before SMITH, DeMOSS, and PARKER, Circuit Judges.
PER CURIAM:*
Homer Montes-Galeas appeals his guilty-plea conviction for
illegal reentry into the United States after deportation in
violation of 8 U.S.C. § 1326. He argues that the indictment
violates the Fifth and Sixth Amendments because it did not allege
that Montes-Galeas had the general intent to reenter the United
States. Montes-Galeas’ argument is foreclosed by this court’s
decisions in United States v. Berrios-Centeno, 250 F.3d 294, 298
(5th Cir.), cert. denied, 122 S. Ct. 288 (2001), and United
*
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that this opinion should not be published and is not precedent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. 01-40881
-2-
States v. Guzman-Ocampo, 236 F.3d 233, 237-39 (5th Cir. 2000),
cert. denied, 121 S. Ct. 2600 (2001).
Montes-Galeas argues that the rule of lenity requires this
court to interpret the term “drug trafficking” conviction under
U.S.S.G. § 2L1.2(b)(1)(A) and 8 U.S.C. § 1101(a)(43) as excluding
a state conviction for drug possession. We have held that drug
possession convictions are drug-trafficking offenses as defined
by U.S.S.G. § 2L1.2(b)(1)(A), 8 U.S.C. § 1101(a)(43), and
18 U.S.C. § 924(c). See United States v. Hernandez-Avalos,
251 F.3d 505, 507 (5th Cir.), cert. denied, 122 S. Ct. 305(2001); United States v. Hinojosa-Lopez, 130 F.3d 691, 693-94
(5th Cir. 1997). Because we have determined that the statutes at
issue are not ambiguous, the rule of lenity is not applicable to
this case. See United States v. Shabani, 513 U.S. 10, 17 (1994).
AFFIRMED.