IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 08-41246

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

TOMAS MARES-CALDERON,

Defendant-Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 7:08-CR-1035

Before KING, STEWART and HAYNES, Circuit Judges.

PER CURIAM:

*

Tomas Mares-Calderon (Mares) has appealed the 33-month sentence

imposed following entry of his guilty plea to being found in the United States

unlawfully following deportation. Mares’s offense level was increased by eight

levels pursuant to U.S.S.G. § 2L1.2(b)(1)(C) because, prior to his deportation in

2006, Mares was convicted in Texas in 1996 of possession of marijuana and in

1999 of possession of a controlled substance. The second conviction was

regarded as an “aggravated felony” under 8 U.S.C. § 1101(a)(43)(B) and U.S.S.G.

United States Court of Appeals

Fifth Circuit

F I L E D

March 18, 2010

Charles R. Fulbruge III

Clerk

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.

Case: 08-41246 Document: 00511055629 Page: 1 Date Filed: 03/18/2010
No. 08-41246

§ 2L1.2(b)(1)(C) because it could have been prosecuted as a felony under the

recidivist clause of 21 U.S.C. § 844. Mares contends on appeal that the district

court reversibly erred in imposing the eight-level adjustment. He argues that

his second possession conviction was not punishable as a felony under § 844(a)

because (1) the Government failed to prove that the offense underlying this

conviction was committed after a prior possession conviction had become final;

and (2) the Government failed to prove that the conviction was secured in

compliance with strict procedural requirements comparable to those in 21 U.S.C.

§ 851.

Ordinarily, this court reviews the district court’s application of the

Sentencing Guidelines de novo and its factual findings for clear error. United

States v. Smith, 440 F.3d 704, 706 (5th Cir. 2006). The Government argues that

Mares’s contention with respect to proof of the finality of the first conviction was

not raised sufficiently below and, therefore, should be reviewed for plain error.

Mares’s written objection was “sufficiently specific to alert the district court to

the nature of the alleged error.” United States v. Neal, 578 F.3d 270, 272-73 (5th

Cir. 2009).

Simple possession of a controlled substance may be punishable as a felony

under the Controlled Substances Act only if it is committed after a prior

conviction for a controlled substance violation has become final. § 844(a); Smith

v. Gonzales, 468 F.3d 272, 277 (5th Cir. 2006). A conviction is final if it is no

longer subject to challenge on direct appeal or discretionary review by any court.

United States v. Andrade-Aguilar, 570 F.3d 213, 218 (5th Cir. 2009). The

Government bore the burden of proving finality by a preponderance of the

evidence. See id. at 217. The record contains copies of the charging instrument

and judgment related to the 1996 conviction and the charging instrument and

“record of criminal actions” related to the 1999 conviction. Mares does not

contend (and the record does not reflect) that he appealed or sought

discretionary review of his 1996 conviction.

2

Case: 08-41246 Document: 00511055629 Page: 2 Date Filed: 03/18/2010
No. 08-41246

The Government’s burden of showing finality for § 844(a) purposes may

be satisfied in some cases by the passage of a substantial amount of time without

a direct appeal or discretionary review. Id. at 218 & n.6. Under Texas law,

Mares had 30 days from sentencing to appeal his first state possession

conviction. See TEX. R. APP. P. 26.2(a)(1). The passage of about three years

between his 1996 conviction and the commission of his 1999 offense would make

it extremely unlikely that the 1996 conviction was not final by date on which the

1999 was committed. See Andrade-Aguilar, 570 F.3d at 218 n.6. The

Government met its burden of proof with respect to finality of the first state

conviction. See id.

Mares’s argument concerning § 851 is also unavailing. Although he

indicates that his argument concerning § 851 is “apparently” foreclosed by this

court’s decision in United States v. Cepeda-Rios, 530 F.3d 333, 335-36 (5th Cir.

2008), he also contends that his argument differs from the one rejected in

Cepeda-Rios. Specifically, he argues that his later possession convictions do not

qualify as aggravated felonies because there has been no showing that a state

prosecutor prosecuting those cases invoked procedures equivalent to those set

out in § 851. As we noted in Cepeda-Rios, “the relevant inquiry under the

sentencing guidelines is whether the crime is punishable under § 844(a).” 530

F.3d at 336 n.11 (emphasis in original). The Government satisfied its burden of

proof in that regard.

The judgment of the district court is AFFIRMED.

3

Case: 08-41246 Document: 00511055629 Page: 3 Date Filed: 03/18/2010