United States v. Medina-Camposano ( 2000 )

                           FOR THE FIFTH CIRCUIT
                               No. 99-41260
                             Summary Calendar
               Appeal from the United States District Court
                    for the Southern District of Texas
                          USDC No. B-99-CR-245-1
                                 August 1, 2000
    Before REAVLEY, DAVIS, and BENAVIDES, Circuit Judges.
         Jose Santos Medina-Camposano (Medina) appeals the sentence
    imposed by the district court following his guilty-plea
    conviction of illegal reentry into the United States following
    deportation in violation of 8 U.S.C. § 1326.   Medina challenges
    the characterization of his prior Texas conviction for cocaine
    possession as an "aggravated felony" offense, which includes drug
    trafficking, and the concomitant sixteen-level increase in his
    base offense level under U.S.S.G. § 2L1.2(b)(1)(A).    He also
    argues that the notice and specificity requirements of due
            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    that this opinion should not be published and is not precedent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. 99-41260
    process are violated by designating his conviction of cocaine
    possession as "drug trafficking."
         We review the district court's application of the Sentencing
    Guidelines de novo and its factual findings for clear error.      See
    United States v. Stevenson, 
    126 F.3d 662
    , 664 (5th Cir. 1997).
         Medina's argument that mere possession of a controlled
    substance does not constitute "drug trafficking," and therefore
    is not an "aggravated felony" for purposes of § 2L1.2(b), even if
    it were not foreclosed by our decision in United States v.
    130 F.3d 691
    , 693-94 (5th Cir. 1997), is
    unavailing.   A "drug trafficking crime" is defined in 18 U.S.C.
    § 924(c)(2) to include "any felony punishable under the
    Controlled Substances Act (21 U.S.C. § 801, et seq.) . . . ."     As
    the offense of possession of cocaine is punishable under the
    Controlled Substances Act, see 21 U.S.C. § 844(a), this argument
    must fail.
         Medina's contention that the term "drug trafficking" as used
    by the Sentencing Guidelines is unconstitutionally vague and does
    not provide adequate notice is likewise unavailing.   Medina is
    challenging a sentencing guideline, not a criminal statute.    "Due
    process does not mandate . . . notice, advice, or a probable
    prediction of where, within the statutory range, the guideline
    sentence will fall."   United States v. Pearson, 
    910 F.2d 221
    , 223
    (5th Cir. 1990).
         Finally, Medina argues that the rule of lenity requires that
    he be given a lesser sentence because the term "aggravated
    felony" is subject to different interpretations.   We are
                               No. 99-41260
    unpersuaded.   The rule of lenity promotes the constitutional
    due-process principle "that no individual be forced to speculate,
    at peril of indictment, whether his conduct is prohibited."      Dunn
    v. United States, 
    442 U.S. 100
    , 112 (1979).   "The rule of lenity
    . . . applies only when, after consulting traditional canons of
    statutory construction, [a court] is still left with an ambiguous
    statute."   United States v. Shabani, 
    513 U.S. 10
    , 17 (1994)
    (emphasis added).   In other words, it applies only "if after a
    review of all applicable sources of legislative intent the
    statute remains truly ambiguous."   United States v. Cooper, 
    966 F.2d 936
    , 944 (5th Cir. 1992)(citation and internal quotation
    marks omitted).   Accordingly, the rule of lenity is a rule of
    statutory construction, see Bifulco v. United States, 
    447 U.S. 381
    , 387 (1980); United States v. Brito, 
    136 F.3d 397
    , 408 (5th
    Cir.), cert. denied, 
    523 U.S. 1128
    524 U.S. 962
    525 U.S. 867
    (1998), rather than a separate constitutional framework for
    raising claims.   We have already expressed our interpretation of
    the term "aggravated felony" in our decision in Hinojosa-Lopez.
    See Hinojosa-Lopez, 130 F.3d at 693-94.
         Accordingly, the district court's judgment is AFFIRMED.