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:

Rogelio Cepeda-Rios (“Cepeda-Rios”) appeals the district court’s imposition

of an 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 of a 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

Clerk
No. 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 of a 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 if the defendant has been convicted of an aggravated felony.

A commentary to the guidelines states thatthe term “aggravated felony” has the

same meaning in §2L1.2 as 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 of Title 21), including a drug trafficking crime (as defined

in section 924(c) of Title 18).”3 Section 924(c) defines “drug trafficking crime” as
No. 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 the Controlled Substances Act[“(CSA”)] (21 U.S.C.

801 et seq.).”4Importantly to this appeal, simple possession is punishable as a

felony under the CSA if the defendant “commits such offense 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 is classified as a 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 if prosecuted under the CSA.

We agree.

In United States v. Sanchez-Villalobos, a case decided pre-Lopez, we

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

when the defendant had two prior state convictions for possession of a 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 a
No. 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-Villalobos was decided pre-Lopez, so we must determine

whether the Supreme Court’s decision requires us to abandon our holding in

Sanchez-Villalobos that a second conviction for simple possession qualifies as an

aggravated felony under the sentencing guidelines. We conclude that we are not

so compelled. 

The holding in Lopez makes clear that the relevant inquiry is whether 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 trafficking 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.,
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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

if the government was actually seeking to prosecute him 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 of his 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 as a 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.