United States v. Rodriguez-Montelvo

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 16, 2009
No. 08-50979
Conference Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
JUAN RODRIGUEZ-MONTELVO, also known as Juan Montelvo-Rodriguez,
also known as Juan Cantu-Gonzalez
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 5:08-CR-287-ALL
Before SMITH, BENAVIDES, and HAYNES, Circuit Judges.
PER CURIAM:*
Juan Rodriguez-Montelvo appeals the sentence imposed following his
guilty plea conviction of violating 8 U.S.C. § 1326(a) and (b)(2) by being found in
the United States without permission, following removal. He contends that the
district court erred by enhancing his sentence pursuant to United States
Sentencing Guideline § 2L1.2(b)(1)(C). Citing Lopez v. Gonzales, 549 U.S. 47(2006), Rodriguez-Montelvo contends that his second state conviction of
*
Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
No. 08-50979
possessing a controlled substance is not a “drug-trafficking offense,” and thus is
not an “aggravated felony” as that term is defined in 8 U.S.C. § 1101(a)(43) for
purposes of § 2L1.2(b)(1)(C). He argues that his second state possession offense
does not correspond to a felony violation of the Controlled Substances Act as
required by Lopez because recidivist proceedings were not invoked in his case.
In United States v. Sanchez-Villalobos, 412 F.3d 572, 577 (5th Cir. 2005),
this court held that a second state offense of possessing a controlled substance
is considered an “aggravated felony,” for purposes of § 2L1.2(b)(1)(C) because
such an offense, if charged in federal court, could be punished as a felony under
21 U.S.C. § 844(a). In light of Sanchez-Villalobos, the district court did not err
by enhancing Rodriguez-Montelvo’s sentence under § 2L1.2(b)(1)(C). In United
States v. Cepeda-Rios, 530 F.3d 333, 335-36 (5th Cir. 2008), this court affirmed
a defendant’s sentence based on Sanchez-Villalobos and held that the Supreme
Court’s decision in Lopez did not require it to abandon the holding in that case.
Rodriguez-Montelvo concedes that his argument is foreclosed by this court’s
decision in Cepeda-Rios. He raises his argument solely to preserve it for
Supreme Court review.
Rodriguez-Montelvo does not allege that the district court committed any
other procedural error in imposing his sentence and does not allege that his
sentence is substantively unreasonable. See Gall v. United States, 128 S. Ct.
586, 597 (2007). Accordingly, the judgment of the district court is AFFIRMED.
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