United States v. Gonzalez-Miranda ( 1999 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-20198
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GREGORIO GONZALEZ-MIRANDA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-98-CR-502-1
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December 15, 1999
Before JOLLY, HIGGINBOTHAM, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Appellant, Gregorio Gonzalez-Miranda, pleaded guilty to re-
entering the United States illegally following deportation.
Gonzalez’s prior deportation followed a conviction in Texas state
court for possession of marijuana, a felony under Texas law. The
district court sentenced him to forty-six months’ imprisonment,
after increasing his base offense level pursuant to U.S.S.G.
§ 2L1.2, which provides a sixteen-level enhancement for a
defendant previously deported following an aggravated felony
conviction.
*
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that this opinion should not be published and is not precedent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. 99-20198
-2-
Gonzalez contends that his prior conviction should not be
characterized as an aggravated felony because aggravated felonies
are defined by statute as drug trafficking crimes. He further
argues that any interpretation of the term “aggravated felony” to
include simple possession is vague and violates the Due Process
Clause of the Fifth Amendment.
Gonzalez’s argument is foreclosed, as he concedes, by this
court’s prior opinion in United States v. Hinojosa-Lopez, 130
F.3d 691 (5th Cir. 1997). As to his constitutional argument, due
process applies to criminal statutes, requiring that they give
fair notice of proscribed conduct. See United States v. Nevers,
7 F.3d 59, 61 (5th Cir. 1993) (citations omitted). Gonzalez’s
challenge is to a sentencing guideline, not to 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. 1991).
For the foregoing reasons, we AFFIRM the judgment of the
district court.
AFFIRMED.