* 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that this opinion should not be published and is not precedent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. 98-40005

Summary Calendar

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JESUS SANTOS-ROMERO,

Defendant-Appellant.

- - - - - - - - - -

Appeal from the United States District Court

for the Southern District of Texas

USDC No. M-97-CR-207-1

- - - - - - - - - -

September 18, 1998

Before HIGGINBOTHAM, JONES, and DENNIS, Circuit Judges

PER CURIAM:*

Jesus Santos-Romero appeals the sentence imposed by the

district court following his guilty plea to a charge of illegal

reentry to the United States following deportation, a violation of

8 U.S.C. §§ 1326(a) and (b). Santos-Romero challenges the

characterization of his prior Texas conviction for possession of

more than 50, but less than 200, pounds of marijuana as an

aggravated felony and the concomitant 16-level increase in his base

offense level mandated by United States Sentencing Commission,

Guidelines Manual, § 2L1.2(b)(2). 
No. 98-40005

-2-

We review a sentence imposed under the Sentencing Guidelines

to determine “whether the sentence was imposed in violation of law,

as a result of an incorrect application of the Sentencing

Guidelines, or was outside of the applicable guideline range and

was unreasonable.” United States v. Hinojosa-Lopez, 130 F.3d 691,

693 (5th Cir. 1997)(citation and internal quotations omitted). We

review findings of fact for clear error, but we conduct a de novo

review of the district court’s applications of the Sentencing

Guidelines. Id.

In cases involving a conviction for unlawful reentry to the

United States, the defendant’s offense level must be increased by

16 levels if the defendant previously was deported after a

conviction for an aggravated felony. U.S.S.G. § 2L1.2(b)(2) (Nov.

1995). A “prior conviction constitutes an aggravated felony for

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

the Controlled Substances Act and (2) it was a felony.” Id. at

694. “Simple possession of marijuana is punishable under the

Controlled Substances Act,” and “possession of more than 50 but

less than 200 pounds of marijuana is now denominated a felony in

the second degree” in Texas. Hinojosa-Lopez, 130 F.3d at 694 &

n.2. Santos-Romero’s argument is thus foreclosed by this court’s

opinion in Hinojosa-Lopez.

Santos-Romero contends for the first time in this court that

the designation of his conviction for simple possession of

marijuana as an aggravated felony violates due process. SantosRomero did not raise this issue in the district court. Thus, we

review his assertion for plain error only. See United States v.
No. 98-40005

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Jackson, 50 F.3d 1335, 1340 n.6 (5th Cir. 1995) (issue which is not

raised in district court is reviewed for plain error). Under Fed.

R. Crim. P. 52(b), this court may correct forfeited errors only

when the appellant shows the following factors: (1) there is an

error, (2) that is clear or obvious, and (3) that affects his

substantial rights. United States v. Calverley, 37 F.3d 160,

162-64 (5th Cir. 1994) (en banc) (citing United States v. Olano,

507 U.S. 725, 730-36 (1993)). If these factors are established,

the decision to correct the forfeited error is within the sound

discretion of the court, and the court will not exercise that

discretion unless the error seriously affects the fairness,

integrity, or public reputation of judicial proceedings. Olano,

507 U.S. at 736. 

“A criminal statute is void for vagueness under the Due

Process Clause of the Constitution when it fails to provide a

person of ordinary intelligence fair notice of the conduct it

proscribes.” See United States v. Nevers, 7 F.3d 59, 61 (5th Cir.

1993) (citations omitted). Santos-Romero does not contend that the

simple possession statute failed to provide sufficient notice of

the conduct it proscribed. He contends that the term “drugtrafficking” does not indicate that simple possession of drugs is

conduct which is proscribed.

“[T]he term `drug-trafficking crime’ means any felony

punishable under the Controlled Substances Act.” 18 U.S.C.

§ 924(c)(2). Marijuana is defined as a controlled substance, and

“[s]imple possession of marijuana is punishable under the

Controlled Substances Act.” 21 U.S.C. §§ 802(6) and 812, Schedule
No. 98-40005

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I(c)(10); Hinojosa-Lopez, 130 F.3d at 694. Santos-Romero has not

shown plain error. Santos-Romero’s sentence is AFFIRMED.