United States v. Hurtado-Bravo ( 2000 )


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  •                  IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    No. 99-20982
    Summary Calendar
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,,
    versus
    HECTOR MARIO HURTADO-BRAVO,
    also known as Hector Miorio Hurtado,
    Defendant-Appellant.
    Appeal from the United States District Court
    for the Southern District of Texas
    USDC No. H-99-CR-68-1
    June 26, 2000
    Before GARWOOD, HIGGINBOTHAM, and WIENER, Circuit Judges.
    PER CURIAM*:
    Hector Mario Hurtado-Bravo (Hurtado-Bravo) appeals the sentence
    imposed by the district court following guilty-plea conviction of
    illegal reentry into the United States following deportation, a
    violation   of   8   U.S.C.   §    1326.   Hurtado-Bravo    challenges   the
    characterization of his prior Texas state 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    opinion should not be published and is not precedent except under the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.
    a controlled substance as a “drug trafficking” offense and the
    concomitant 16-level increase in his base offense level under U.S.S.G.
    § 2L1.2(b)(1)(A). He also contends that the notice and specificity
    requirements of due process are violated by designating his Texas
    conviction of simple possession of cocaine 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. Lowder, 
    148 F.3d 548
    , 552 (5th Cir. 1998).
    Hurtado-Bravo’s argument that simple possession of a controlled
    substance does not constitute an “aggravated felony” for purposes of §
    2L1.2(b)(1)(A) is foreclosed by our decision in United States v.
    Hinojosa-Lopez, 
    130 F.3d 691
    (5th Cir. 1997). 18 U.S.C. § 924(c)(2)
    defines a “drug trafficking crime” to include “any felony punishable
    under the Controlled Substances Act (21 U.S.C. [§] 801, et seq.) . . ..”
    As simple possession of cocaine is a felony under Texas law and is also
    an offense punishable under the Controlled Substances Act, see 21 U.S.C.
    § 844(a), Hurtado-Bravo’s argument fails.
    Hurtado-Bravo’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.          Hurtado-Bravo
    challenges only a sentencing guideline. “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). Hurtado-Bravo’s sentence
    2
    was well within the statutory range even if his Texas conviction had
    been merely a “felony,” as he concedes it was, rather than an
    “aggravated felony.”
    Accordingly, the district court’s judgment is AFFIRMED.
    3
    

Document Info

Docket Number: 99-20982

Filed Date: 6/27/2000

Precedential Status: Non-Precedential

Modified Date: 4/17/2021