### REVISED JULY 22, 2008

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-50731

UNITED STATES OF AMERICA Plaintiff-Appellee v. ROGELIO CEPEDA-RIOS Defendant-Appellant

Appeal from the United States District Court for the Western District of Texas
Before JONES, Chief Judge, and WIENER and CLEMENT, Circuit Judges. PER CURIAM: RogelioCepeda-Rios (“Cepeda-Rio s”) appeals the district court’s imposition ofan eight-level sentence enhancement for his guilty-plea conviction for illegal re-entry into the United States. He argues that his prior conviction for possession ofa controlled substance does not qualify as an “aggravated felony” under the sentencing guidelines. We affirm. I. FACTS AND PROCEEDINGS Cepeda-Rios pleaded guilty to illegal re-entry into the United States after removal, in violation of 8 U.S.C. § 1326. The presentence report (“PSR”) recommended an eight-level upward adjustment based on Cepeda-Rios’s prior United States Court of Appeals

Fifth Circuit 

### F I L E D June 4, 2008 Charles R. Fulbruge III ClerkNo. 07-50731

1 United States v. Armendariz, 451 F.3d 352, 357 (5th Cir. 2006).

2 U.S.S.G. § 2L1.2 cmt. n.3(A).

3 8 U.S.C. § 1101(a)(43)(B) (emphasis added). 2 conviction for the sale of tar heroin, in violation of Section 11352 of the California Health and Safety Code. Cepeda-Rios filed an objection to the PSR, arguing that his § 11352 conviction was not an aggravated felony under federal law. At sentencing, the district court overruled Cepeda-Rios’s objection and imposed an eight-level upward adjustment. The court determined that the enhancement was appropriate because (1) Cepeda-Rios’s conviction under § 11352 was an aggravated felony, and (2) even if the § 11352 conviction alone did not qualify as an aggravated felony, it could have been charged as a felony if it had been brought under federal law because Cepeda-Rios had a prior conviction for possession ofa controlled substance. Cepeda-Rios was sentenced to a twenty-month term of imprisonment. He timely filed a notice of appeal. II. ANALYSIS A. Standard of Review We review the district court’s application of the sentencing guidelines de
novo
. 1 B. Merits Section 2L1.2 of the Sentencing Guidelines provides for an eight-level upward adjustment ifthe defendant has been convicted ofan aggravated felony. A commentary tothe guidelinesstates that the term “aggravated felony” has the
same meaning in §2L1.2as it has in 8 U.S.C. § 1101(a)(43). 2 Section 1101(a)(43) defines “aggravated felony” as “illicit trafficking in a controlled substance (as defined in section 802 ofTitle 21), including a drug trafficking crime (as defined in section 924(c) ofTitle 18).”3 Section 924(c) defines “drug trafficking crime” asNo. 07-50731

4 18 U.S.C. § 924(c)(2) (emphasis added).

5 21 U.S.C. § 844(a).

6 127 S. Ct. 625, 633 (2006).

7 412 F.3d 572, 577 (5th Cir. 2005). 3 “any felony punishable under theControlled SubstancesAct [“(CSA”)] (21 U.S.C. 801 et seq.).”4 Importantly to this appeal, simple possession is punishable as a felony under the CSA if the defendant “commits such o ffense after a prior conviction . . . for any drug, narcotic, or chemical offense chargeable under the law of any State.”5 In Lopez v. Gonzales, the Supreme Court held that “a state offense constitutes a ‘felony punishable under the Controlled Substances Act’ only if it proscribes conduct punishable as a felony under that federal law.”6 Therefore,
we must look only to whether Cepeda-Rios’s conviction would be considered an “aggravated felony” under federal law; whether the crime isclassified asa felony or misdemeanor by the state of conviction is irrelevant. The government concedes that Cepeda-Rios’s conviction for possession under § 11352, standing alone, is not an aggravated felony. The government insists, however, that the enhancement applies because Cepeda-Rios’s second conviction for possession would have been a felony ifprosecuted under the CSA. We agree. In United States v. Sanchez-Villalobos, a case decided pre-L opez, we upheld the application of the eight-level enhancement under § 2L1.2(b)(1)(C) when the defendant had twoprior state convictionsfor possession ofa controlled substance. 7 We concluded that the defendant was eligible for the enhancement because his second conviction “could have been punished under § 844(a) as aNo. 07-50731

8 Id.

9 Pruitt v. Levi Strauss & Co., 932 F.2d 458, 465 (5th Cir. 1991) (“This circuit follows the rule that alternative holdings are binding precedent and not obiter dictum.”), abrogated on other grounds by Floors Unlimited, Inc. v. Fieldcrest Cannon, Inc., 55 F.3d 181, 185-86 (5th Cir. 1995); McLellan v. Miss. Power & Light Co., 545 F.2d 919, 925 n.21 (5th Cir. 1977) (“It has long been settled that all alternative rationales for a given result have precedential value.”).

10 127 S. Ct. at 630 n.6. 4 felony with a penalty of up to two years imprisonment.”8 Although this was an alternative holding, it is binding nonetheless. 9 As noted, Sanchez-Villaloboswasdecided pre-Lopez, sowe must determine whether the Supreme Court’s decision requires us to abandon our holding in Sanchez-Villalobosthat a second conviction for simple possession qualifiesasan aggravated felony under thesentencing guidelines. We conclude that we are not so compelled. The holding in Lopez makes clear that the relevant inquiry iswhether the prior crime at issue qualifies as a felony under federal law. Although the Lopez Court did not address whether a second conviction for possession constitutes an aggravated felony, it did recognize the applicability of the recidivist provisions in § 844(a). Specifically, the Court stated Congress did counterintuitively define some possession offenses as “illicit trafficking.” Those state possession crimes that correspond to felony violations of one of the three statutes enumerated in § 924(c)(2), such as possession of cocaine base and recidivist possession, see 21 U.S.C. § 844(a), clearly fall within the definitions used by Congress in 8 U.S.C. § 1101(a)(43)(B) and 18 U.S.C. § 924(c)(2), regardless of whether these federal possession felonies or their state counterparts constitute “illicit traffic king in a controlled substance” or “drug trafficking” as those terms are used in ordinary speech. 10 We find nothing in the Court’s opinion in Lopez that overrules our holding in Sanchez-Villalobos

. The analysis employed there by the Supreme Court is consistent with our earlier “hypothetical” approach in Sanchez-Villalobos, viz.,No. 07-50731

11 Cepeda-Rios argues that the government’s failure to comply with the procedural requirements of§ 851(a) prohibit the court from enhancing his sentence under § 844(a) based on his first state possession conviction. Although Cepeda-Rios’s argument would have merit ifthe government was actually seeking to prosecutehim under § 844(a), he was not prosecuted under that section. Thus, the relevant inquiry under the sentencing guidelines is whether the crime is punishable under § 844(a). The United States was not a party to Cepeda-Rios’s state law convictions; it had no opportunity and was not required to comply with the procedural requirements of § 851(a). Cepeda-Rios had the opportunity to object to the finality ofhis first state possession conviction at his federal sentencing hearing, but he did not do so.

12 Sanchez-Villalobos, 412 F.3d at 577.5 a state crime is to be deemed a felony if it would have been prosecuted as such under federal law. Cepeda-Rios does not challenge the validity or finality of his prior state convictions. 11 Under the CSA, if his second possession offense had been prosecuted under federal law, it would have been punishable as a felony. “[I]t would not, as he contends, only have been punishable asa misdemeanor.”12 This is why Cepeda-Rios’s second state conviction for possession must be treated as an aggravated felony for purposes of his sentence. III. CONCLUSION For the foregoing reasons, the judgment of the district court is AFFIRMED.