* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata and coll ateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### DEC 16 1997 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,
v. FRANCISCO MACIEL-SEDANO, Defendant-Appellant. No. 97-4113 (District of Utah) (D.C. No. 97-CR-145-C)

ORDER AND JUDGMENT *
Before SEYMOUR , Chief Judge, PORFILIO and MURPHY , Circuit Judges. After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. This court therefore honors the parties’ requests and orders the case su bmitted without oral argument. The district court sentenced Francisco Maciel-Sedan o to 70 months imprisonment for unlawfully reentering the United S tates after a prior deportation1 Although § 1326(a) provides for a term of imprisonm ent of no more than

two years for reentry after a prior deportation, § 1326(b) provides an enhanced penalty when the reentry was subsequent to a convic tion of an “aggravated felony.” 8 U.S.C. § 1326(b) (providing for a priso n term of not more than 20 years when the reentry follows a conviction for an aggravated felony).

2 U.S.S.G. § 2L1.2(b)(1)(A) provides that a defendant ’s base offense level be increased by 16 levels if the reentry followed aconviction for an aggravated felony. -2- in violation of 8 U.S.C. § 1326. Maciel-Sedano app eals the sentence claiming that the district court improperly enhanced his bas e offense level by sixteen points pursuant to § 1326(b)(2) and U.S.S.G. § 2L1.2(b)(2) because the reentry was subsequent to the conviction of an aggravated felony. This court exercises jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U. S.C. § 3742(a) and affirms
. The facts relevant to the determination of this app eal are quite limited. On April 23, 1997, Maciel-Sedano was indicted on one c ount of reentry by a deported alien in violation of 8 U.S.C. § 1326. That same d ay, the United States filed a Notice of Sentencing Enhancement, asserting that Ma ciel-Sedano was subject to the enhanced penalties set out in § 1326(b)(2) 1 and U.S.S.G. § 2L1.2(b)(1). 2 The grounds for the sentencing enhancement set forth inthe Notice were: “Possession of a controlled substance in Fourth Judicial Distri ct Court, Utah County, Utah (Case #951400627) using the name of Francisco S. Ma ciel. Judgment & Commitment filed on or about December 8, 1995.” Ma ciel-Sedano objected to the sentencing enhancement on the grounds that a co nviction for possession of a-3-

controlled substance did not constitute an aggravat ed felony. The district court rejected the objection and sentenced Maciel-Sedano to a term of 70 months based on the sixteen level enhancement set out in § 2L1.2 (b)(1). This court can resolve Maciel-Sedano’s argument in short order. MacielSedano first argues that a mere possession convicti on, although clearly a felony under both Utah and federal law, does not meet the definition of “aggravated felony” set out in § 1326 and the Sentencing Guidel ines. This court has, however, specifically rejected the exact argument a dvanced by Maciel-Sedano. See United States v. Cabrera-Sosa , 81 F.3d 998, 999-1000 (10th Cir.), cert. denied, 117 S. Ct. 218 (1996). In an effort to distingui sh Cabrera-Sosa , MacielSedano argues that the panel in Cabrera-Sosafailed to address the 1994 amendments to the definition of aggravated felony c ontained in 8 U.S.C. § 1101(a)(43) and that those amendments significantlynarrowed the definition of aggravated felony. This court, however, just recently again rejected the exact argument advanced by Maciel-Sedano. See United States v. ValenzuelaEscalante , No. 96-4147, 1997 WL 751586 (10th Cir. Dec. 5, 19 97). In fact, in stark contrast to the arguments presented by Maciel -Sedano, the ValenzuelaEscalante panel noted that the 1994 amendments actually expa nded the definition of “aggravated felony.” See id. at *3.-4-

In light of this court’s decisions in Cabrera-Sosaand ValenzuelaEscalante , it is clear that the district court properly appl ied the § 2L1.2(b)(1)(a) sixteen-level enhancement to Maciel-Sedano’s base o ffense level. Accordingly, the judgment of the United States District Court fo r the District of Utah is hereby AFFIRMED
. ENTERED FOR THE COURT,
Michael R. Murphy Circuit Judge