*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. 07-11309

Summary Calendar

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

MARIA IZAGUIRRE-MEZA

Defendant-Appellant

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 3:07-CR-155-ALL

Before GARZA, DeMOSS, and CLEMENT, Circuit Judges.

PER CURIAM:*

Defendant-Appellant Maria Izaguirre-Meza appeals the 36-month

sentence imposed following her guilty plea conviction for illegal reentry after

removal from the United States in violation of 8 U.S.C. § 1326(a) & (b)(2). She

argues that the district court erred in determining that her prior state

convictions for possession of a controlled substance were aggravated felonies for

purposes of U.S. SENTENCING GUIDELINES MANUAL § 2L1.2(b)(1)(C) (2006). She

argues that because her state possession convictions were not subject to a state

United States Court of Appeals

Fifth Circuit

F I L E D

February 6, 2009

Charles R. Fulbruge III

Clerk
No. 07-11309

2

recidivist enhancement, they should not be considered an aggravated felony for

sentencing purposes under § 2L1.2(b)(1)(C). She also argues that the procedural

safeguards mandated under federal and state law for application of a recidivist

enhancement were not satisfied. She acknowledges United States v.

Cepeda-Rios, 530 F.3d 333, 335-36 (5th Cir. 2008), but argues that it did not

address the notice issues presented in this case.

In Cepeda-Rios, 530 F.3d at 335-36, we held that Lopez v. Gonzales, 549

U.S. 47 (2006), did not require that this court abandon its holding in United

States v. Sanchez-Villalobos, 412 F.3d 572, 577 (5th Cir. 2005), that a second

state conviction for simple possession qualified as an aggravated felony, which

supported the imposition of the eight-level enhancement under § 2L1.2(b)(1)(C).

Similarly, Izaguirre-Meza has four prior state convictions for possession of a

controlled substance, at least two of which if filed in federal court would have

been punishable as a felony under § 844(a). Thus, the district court did not err

in determining that at least one of her prior convictions may be treated as an

aggravated felony for sentencing purposes under § 2L1.2(b)(1)(C). See CepedaRios, 530 F.3d at 335-36.

We also rejected Cepeda-Rios’s argument that the Government’s failure

to comply with the procedural requirements of § 851(a) prohibited the district

court from enhancing his sentence under § 844(a) based on his first state

possession conviction. Id. at 335-36 & n.11. This court noted that the relevant

inquiry was whether the crime was punishable under § 844(a), rather than

whether the Government actually sought to prosecute the defendant under

§ 844(a). Id. This court observed further that “Cepeda-Rios had the opportunity

to object to the finality of his first state possession conviction at his federal

sentencing hearing, but he did not do so.” Id. Likewise, Izaguirre-Meza did not

challenge the existence, validity, or finality of her prior state possession

convictions at her federal sentencing hearing or on appeal. Because the

Government did not actually seek to prosecute Izaguirre-Meza under the
No. 07-11309

3

Controlled Substances Act, and was not a party to Izaguirre-Meza’s state court

convictions, § 851(a) notice was not necessary. See id. Further, in Lopez, the

Supreme Court held that the sentencing court “must look only to whether [a

defendant’s] conviction would be considered an ‘aggravated felony’ under federal

law; whether the crime is classified as a felony or misdemeanor by the state of

conviction is irrelevant.” See id. at 334. Similarly, the state notice requirements

are also irrelevant to the determination of whether the § 2L1.2 enhancement is

warranted. See id.

AFFIRMED.