* After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. The case is therefore submitted without oral argument. This order and

judgment is not binding precedent, except under the doctrines of law of the case, res

judicata, and collateral estoppel. The court generally disfavors the citation of orders and

judgments; nevertheless, an order and judgment may be cited under the terms and

conditions of 10th Cir. R. 36.3.

F I L E D

United States Court of Appeals

Tenth Circuit

FEB 9 1998

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

RAUL MIRAMONTES-LAMAS,

Defendant-Appellant.

No. 97-4130

(D.C. 97-CR-164-C)

(District of Utah)

ORDER AND JUDGMENT*

Before PORFILIO, KELLY, and HENRY, Circuit Judges.

Defendant-Appellant Raul Miramontes-Lamas pled guilty to one count of violating

8 U.S.C. § 1326 by illegally reentering the United States following his deportation. At

sentencing, the district court imposed a 16-level enhancement to Mr. MiramontesLamas’s sentence, finding that his prior conviction in Utah state court for possession of a

controlled substance constituted an “aggravated felony” under 8 U.S.C. § 1326(b)(2). 
2

Mr. Miramontes-Lamas now directly appeals his sentence, arguing that his prior

conviction did not meet the definition of an “aggravated felony.” We reject Mr.

Miramontes-Lamas’s argument and affirm his sentence.

In 1994, Mr. Miramontes-Lamas was convicted in Utah state court of possession

of heroin. See Rec. vol. II, at 6. This conviction marked Mr. Miramontes-Lamas’s third

conviction under Utah law for possession of a controlled substance. See id. at 3-6. And

under Utah law, if an individual has two prior convictions for possession of a controlled

substance, a third possession conviction constitutes “a third degree felony.” Utah Code

Ann. § 58-37-8(2)(e), 

In this appeal, Mr. Miramontes-Lamas contends that the district court

misconstrued the meaning of “aggravated felony” under 8 U.S.C. § 1326(b)(2) and, thus,

incorrectly ruled that his prior Utah conviction for possession of heroin warranted a 16-

level enhancement to his current federal sentence for illegally reentering the country. We

review de novo a district court’s interpretation of a criminal statute. United States v.

Valenzuela-Escalante, 130 F.3d 944, 945 (10th Cir. 1997).

Under 8 U.S.C. § 1101(a)(43)(B), a prior conviction constitutes an “aggravated

felony” for sentencing purposes if it qualifies as “a drug trafficking crime (as defined in

section 924(c) of Title 18).” 18 U.S.C. § 924(c) explains that “drug trafficking crime”

means, in relevant part, “any felony punishable under the Controlled Substances Act (21

U.S.C. 801 et seq.).” Mr. Miramontes-Lamas’s conviction meets both prongs of § 924(c),
1The Controlled Substance Act defines “felony” as “any Federal or State offense

classified by applicable Federal or State law as a felony.” 21 U.S.C. § 802(13).

3

since (1) it is a felony under Utah law, see Utah Code Ann. § 58-37-8(2)(e)1; and (2) it

could have been punished under the Controlled Substances Act, see 21 U.S.C. § 844(a). 

See also United States v. Cabrera-Sosa, 81 F.3d 998, 1000 (10th Cir.), cert. denied, 117 S.

Ct. 218 (1996).

Prior to 1994, 8 U.S.C. § 1101(a)(43) defined an “aggravated felony,” in relevant

part, as “illicit trafficking in a controlled substance . . . , including a drug trafficking

crime (as defined in section 924(c)(2) of Title 18)” (emphasis supplied). In 1994,

Congress amended the definition of “aggravated felony” so as to include “drug trafficking

crime[s](as defined by “section 924(c) of Title 18)” (emphasis supplied). Section 924(c)

covers not only drug trafficking crimes, see § 924(c)(2), but also crimes of violence, see

§§ 924(c)(1), (3).

The crux of Mr. Miramontes-Lamas’s argument is that, when Congress amended

the definition of “aggravated felony,” it intended to exclude all drug crimes that did not

involve possession of a firearm. However, we recently rejected this identical argument in

Valenzuela-Escalante, 130 F.3d at 947. Today, we follow Valenzuela-Escalante and once

again rule that, by amending the definition of “aggravated felony,” Congress intended to

expand rather than restrict the number of crimes that qualify as aggravated felonies under

Chapter 8 of the United States Code. See id. Accordingly, we hold that Mr. Miramontes-
4

Lamas’s conviction for heroin possession constituted an aggravated felony under 8 U.S.C.

§ 1326(b)(2) despite the fact that this conviction did not involve possession of a firearm.

Citing only Webster’s Dictionary as authority, Mr. Miramontes-Lamas also

contends that mere possession of narcotics cannot qualify as “drug trafficking,” because

“trafficking” necessarily involves some element of trade or exchange. Unfortunately for

Mr. Miramontes-Lamas, Webster’s Dictionary is not controlling authority in this circuit. 

However, Valenzuela-Escalante is, and in that case we held that possession of a

controlled substance alone, even if not for the purpose of distribution or sale, is sufficient

to qualify as “drug trafficking” under 18 U.S.C. § 924(c), thus triggering the aggravated

felony enhancement under 8 U.S.C. § 1326(b)(2). See 130 F.3d at 945-47.

Thus, we conclude that Mr. Miramontes-Lamas’s prior conviction for possession

of heroin constituted an “aggravated felony” under 8 U.S.C. § 1326(b)(2), and we

AFFIRM his sentence.

The mandate shall issue forthwith.

Entered for the Court,

Robert H. Henry

Circuit Judge