* 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that this opinion should not be published and is not precedent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. 00-20936 

Summary Calendar

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

MIGUEL ANGEL GUILLEN-OCHOA,

also known as Miguel Angel Guillen, 

also known as Miguel Guillen,

Defendant-Appellant.

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

Appeal from the United States District Court

for the Southern District of Texas

USDC No. H-00-CR-354-1

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

May 28, 2001

Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges. 

PER CURIAM:*

Defendant-Appellant Miguel Angel Guillen-Ochoa appeals his

conviction based on his plea of guilty to attempted illegal reentry

into the United States following deportation. He also appeals his

sentence.

Regarding his conviction, Guillen-Ochoa argues that a prior

aggravated felony conviction is an element of the offense under 8

U.S.C. § 1326, not merely a sentencing factor, and thus must be

alleged in the indictment. He concedes, however, that we cannot
2

grant relief on this issue because of the Supreme Court's decision

in Almendarez-Torres v. United States, 523 U.S. 224 (1998). He

nevertheless seeks to preserve the issue for Supreme Court review

in light of the doubt about the decision in that case subsequently

expressed by the Court in Apprendi v. New Jersey, 530 U.S. 466

(2000), even though Apprendi did not overrule Almendarez-Torres.

See Apprendi, 530 U.S. at 489; see also United States v. Dabeit,

231 F.3d 979, 984 (5th Cir. 2000), cert. denied, 121 S. Ct. 1214

(2001). 

Guillen-Ochoa also challenges the 16-level increase to his

base offense level for attempted illegal reentry. The increase was

imposed under U.S.S.G. § 2L1.2(b)(1)(A), implicating “aggravated

felonies.” Guillen-Ochoa’s argument that his Texas conviction for

possession of cocaine does not qualify as an aggravated felony for

purposes of U.S.S.G. § 2L1.2 is foreclosed by our decision in

United States v. Hinojosa-Lopez, 130 F.3d 691, 693-94 (5th Cir.

1997). Guillen-Ochoa argues that this claim is nonetheless

available to him because he raises it under the rule of lenity. 

He is wrong. “The rule of lenity . . . applies only when, after

consulting traditional canons of statutory construction, [a court

is] left with an ambiguous statute.” United States v. Shabani, 513

U.S. 10, 17 (1994) (emphasis added). It follows from our decision

in Hinojosa-Lopez that, even if the term “aggravated felony”

remains ambiguous at all, it is not so ambiguous as to require an

application of the rule of lenity. See Hinojosa- Lopez, 130 F.3d

at 693-94. 
3

Guillen-Ochoa also contends that neither of his other Texas

convictions —— one for unauthorized use of a motor vehicle and the

other for unlawfully carrying a weapon in a tavern —— qualifies as

an aggravated felony for purposes of U.S.S.G. § 2L1.2. Because the

aggravated felony sentence enhancement of which Guillen-Ochoa

complains is supported by his Texas conviction for possession of

cocaine, which is sufficient on its own to justify the enhancement

in question, we need not and therefore do not address whether the

other two offenses are aggravated felonies.

AFFIRMED.