* 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that this opinion should not be published and is not precedent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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 01-41305

Summary Calendar

 

UNITED STATES OF AMERICA

Plaintiff - Appellee

v.

SAUL CASAREZ-HERRERA, also known as Saul Herrera-Casares, 

also known as Saul Herrera, also known as Saul Casares,

also known as Saul Casarez

Defendant - Appellant

--------------------

Appeal from the United States District Court

for the Southern District of Texas

USDC No. C-01-CR-168-1

--------------------

July 22, 2002

Before KING, Chief Judge, and WIENER and PARKER, Circuit Judges.

PER CURIAM:*

Saul Casarez-Herrera (“Casarez”) appeals his conviction and

sentence for illegal reentry of a deported alien who was

previously convicted of an aggravated felony in violation of 8

U.S.C. § 1326(a)(2) and (b)(2). Casarez contends that the

district court erred when it rejected his collateral challenge of

the February 1999 deportation order that was used in his 8 U.S.C.
No. 01-41305

-2-

§ 1326 prosecution. He also argues that the district court

erroneously applied U.S.S.G. § 2L1.2(b)(1)(A), resulting in a 16-

level increase to his base offense level, based on a finding that

Texas felony possession of marihuana was an aggravated felony.

Casarez’s collateral challenge of the February 1999

deportation order fails because he has not demonstrated that he

suffered actual prejudice from defects that may have occurred in

the removal proceeding, since he has not shown that “there was a

reasonable likelihood that but for the error complained of . . .

[he] would not have been deported.” See United States v. LopezVasquez, 227 F.3d 476, 485 (5th Cir. 2000) (internal quotations

and citations omitted). Additionally, Casarez has failed to

demonstrate that he exhausted available administrative remedies

and that the purportedly defective removal proceeding deprived

him of judicial review. See 8 U.S.C. § 1326 (d)(1) and (2);

Lopez-Vasquez, 227 F.3d at 483.

Casarez asserts that his prior conviction for possession of

marihuana is not an aggravated felony or a drug-trafficking

offense and thus the district court erred by increasing his

offense level under U.S.S.G. § 2L1.2. The 2000 version of

Section 2L1.2, the version in effect at the time of sentencing, 

authorized a 16-level base offense level increase if the

defendant was previously deported following a conviction for an

aggravated felony. In United States v. Hinojosa-Lopez, 130 F.3d

691, 694 (5th Cir. 1997), we determined that a “prior conviction
No. 01-41305

-3-

constitutes an aggravated felony for purposes of U.S.S.G.

§ 2L1.2(b)(2) if (1) the offense was punishable under the

Controlled Substances Act and (2) it was a felony.” We held that

the defendant’s prior conviction for possession of marihuana,

which was a felony under Texas law and a misdemeanor under

federal law, constituted an aggravated felony for purposes of

U.S.S.G. § 2L1.2(b)(2). Id. Hinojosa-Lopez’s rationale and

holding applies to Casarez’s case. Thus, Casarez’s position is

foreclosed by Hinojosa-Lopez.

The judgment of the district court is AFFIRMED.