United States v. Ramirez ( 2000 )

No. 99-40820
-1-
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-40820
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ALFREDO RAMIREZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. L-98-CR-1056-1
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February 16, 2000
Before EMILIO M. GARZA, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Alfredo Ramirez has appealed the sentence imposed following
entry of his guilty plea to an indictment charging him with
illegally entering the United States after being deported to
Mexico. Because Ramirez had previously been convicted in Texas
state court for possession of marijuana, the district court
sentenced Ramirez as an "aggravated felon" under U.S.S.G.
§ 2L1.2(b)(1)(A).
In United States v. Hinojosa-Lopez, 130 F.3d 691, 693-94
(5th Cir. 1997) (applying § 2L1.2 comment. (n.7)), the court held
that the appellant's state-court conviction for possession of
*
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this opinion should not be published and is not precedent except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. 99-40820
-2-
marijuana constituted an "aggravated felony," for purposes of
§ 2L1.2(b)(1)(A), because it was punishable under the Controlled
Substances Act and was a felony under Texas state law. The
rationale of Hinojosa-Lopez applies to this case and forecloses
Ramirez’ contentions to the contrary.
Ramirez argues that the term “drug trafficking” in 8 U.S.C.
§ 1101(a)(43)(B), is unconstitutionally vague because a person of
reasonable intelligence could not be expected to understand it to
include simple possession of marijuana. He urges that the common
usage of the word “trafficking” connotes some type of
distribution, manufacture, and importation. Ramirez'
constitutional argument is unfounded because his 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).
AFFIRMED.