United States v. Medina-Camposano ( 2000 )


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  •                IN THE UNITED STATES COURT OF APPEALS
                           FOR THE FIFTH CIRCUIT
    
    
    
                               No. 99-41260
                             Summary Calendar
    
    
    
    UNITED STATES OF AMERICA,
    
                                             Plaintiff-Appellee,
    
    versus
    
    JOSE SANTOS MEDINA-CAMPOSANO,
    
                                             Defendant-Appellant.
    
                            --------------------
               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.
    
    PER CURIAM:*
    
         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    that this opinion should not be published and is not precedent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
                                    -2-
    
    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.
    
    Hinojosa-Lopez, 
    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
                                    -3-
    
    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.