United States 5th Circuit Court of Appeals Reports

U.S. v. ESTRADA-MENDOZA, 05-41627 (5th Cir. 1-3-2007)
UNITED STATES OF AMERICA, Plaintiff-Appellee, v. PABLO
ESTRADA-MENDOZA, also known as Ignacio Chavez-Mendoza,
Defendant-Appellant. No. 05-41627. United States Court of
Appeals, Fifth Circuit. Filed January 3, 2007.

Appeal from the United States District Court for the
Southern District of Texas, USDC No. 5:05-CR-997-ALL.

Before HIGGINBOTHAM, SMITH, and DEMOSS, Circuit Judges.

PER CURIAM.

Pablo Estrada-Mendoza (Estrada) pleaded guilty to illegal
reentry after deportation in violation of 8 U.S.C. §
1326(a) and (b)(2). Estrada’s presentence investigation
report (PSR) set his base offense level at 8 and added 8
levels for his prior Texas felony conviction for possession
of a controlled substance, which the PSR characterized as
an “aggravated felony” under U.S.S.G. §
2L1.2(B)(1)(C). After a 3-level reduction for acceptance of
responsibility, Estrada’s total offense level was 13. With
a criminal history category of VI, his sentencing
guidelines imprisonment range was 33 to 41 months.

Estrada objected to the 8-level increase for the controlled
substance offense on the ground that it should not be
considered an aggravated felony because, although it was a
felony under Texas law, it would be a misdemeanor under the
federal Controlled Substances Act (CSA). The district court
overruled the objection and sentenced Estrada to serve 33
months in prison. Applying the recent decision of the
Supreme Court in Lopez v. Gonzales, 2006 WL 3487031 (U.S.
Dec. 5, 2006), we vacate in part and remand for
resentencing.

The district court’s ruling on Estrada’s objection was
consistent with our holding in United States v.
Hinojosa-Lopez, 130 F.3d 691 (5th Cir. 1997). In that case,
we held that the § 2L1.2 increase for an aggravated
felony is proper for a prior state felony drug conviction
even though the same conduct would be a misdemeanor under
the CSA. Hinojosa-Lopez, 130 F.3d at 693-94.

This court has repeatedly relied on the holding of
Hinojosa-Lopez to dispose of criminal cases with the same
issue. One of those cases is United States v.
Toledo-Flores, 149 F. App’x 241, 242 (5th Cir. 2005).
Reymundo Toldeo-Flores had been convicted of illegal entry.
On appeal, he argued that his state felony conviction for
possession of cocaine did not qualify as an aggravated
felony because it was a misdemeanor under the CSA. We
affirmed, relying on Hinojosa-Lopez. Id.

In an unrelated case, the Eighth Circuit affirmed the Board
of Immigration Appeals’ order removing alien Jose Antonio
Lopez on the ground that he had previously been convicted
of an aggravated felony under the Immigration and
Nationality Act (INA). Lopez v. Gonzales, 417 F.3d 934, 937
(8th Cir. 2005). Lopez’s aggravated felony was a state drug
felony, but the same conduct would be a misdemeanor under
the CSA. Id.

Both Toledo-Flores and Lopez petitioned the Supreme Court
for writs of certiorari, arguing that Hinojosa-Lopez and
similar cases were wrongly decided. Brief of Petitioner,
Toledo-Flores v. United States, No. 05-7664, 2005 WL
3940988, *11 (U.S. Nov. 15, 2005); Brief of Petitioner,
Lopez v. Gonzales, No. 05-547, 2005 WL 2875037, *13-15 (U.S.
Oct. 31, 2005). The Supreme Court granted certiorari in
both cases and heard oral argument in both on the same day.
Toledo-Flores v. United States, 126 S. Ct. 1652 (2006);
Lopez v. Gonzales, 126 S. Ct. 1651 (2006). The Supreme
Court thereafter dismissed the writ of certiorari in
Toledo-Flores as improvidently granted, 2006 WL 3487254
(Dec. 5, 2006), and, on the same day, issued an opinion in
Lopez, 2006 WL 3487031.

The Supreme Court began its opinion by stating that whether
a crime is an “aggravated felony” has implications under
both the section of the INA at issue in that case and the
section of the Guidelines at issue in this one, the latter
because the Guidelines adopted the INA definition of
“aggravated felony.” Id. at *2. It then stated that it had
granted certiorari in Lopez to resolve a circuit split,
citing Hinojosa-Lopez and other cases, both criminal and
immigration. Id. at *3 n. 3. The Court then analyzed
whether an alien may be penalized under the INA for an
“aggravated felony” when the crime was a felony under state
law but would be a misdemeanor under the CSA. Id. at *3-7.

The Supreme Court’s analysis began with the provision of
the INA that penalizes an alien for a prior “aggravated
felony” if the alien had been convicted of “illicit
trafficking in a controlled substance. . . including a drug
trafficking crime (as defined in section 924(c) of title
18).” 8 U.S.C. § 1101(a)(43)(B); Lopez, 2006 WL
3487031, *3. Under 18 U.S.C. § 924(c), “the term
`drug trafficking crime’ means any felony punishable under
the Controlled Substances Act. . . .” Lopez, 2006 WL
3487031, *3. Mere possession of a controlled substance is
not a felony under the CSA. 21 U.S.C. § 844(a);
Lopez, 2006 WL 3487031, *3. The Supreme Court held,
therefore, that the INA, 8 U.S.C. § 1101(a)(43)(B),
does not penalize an alien for mere possession of a
controlled substance. Lopez, 2006 WL 3487031, *7. The Court
reversed the Eight Circuit’s judgment affirming the BIA’s
order removing Lopez. Id.

Given the Court’s reference to the Guidelines, its citation
to Hinojosa-Lopez, and its interpretation of a phrase
directly adopted by the Guidelines, Lopez ineluctably
applies with equal force to immigration and criminal cases.
The Government agrees. As Estrada was sentenced under
now-rejected jurisprudence, we vacate his sentence and
remand for resentencing.

Estrada also challenges his conviction and sentence by
arguing that, in light of Apprendi v. New Jersey, 530 U.S.
466 (2000), § 1326(b)’s treatment of prior felony
and aggravated felony convictions as sentencing factors
rather than elements of the offense that must be found by a
jury is unconstitutional. This argument is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224, 235
(1998). See United States v. Garza-Lopez, 410 F.3d 268, 276
(5th Cir.), cert. denied, 126 S. Ct. 298 (2005). Estrada
concedes as much, but he raises the argument to preserve it
for further review.

AFFIRMED IN PART; VACATED IN PART AND REMANDED.[fn1]

[fn1] All pending motions are denied.