* 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this opinion should not be published and is not precedent except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. 98-40309

Summary Calendar

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

HOMERO REYES-DE LA CRUZ,

Defendant-Appellant.

- - - - - - - - - -

Appeal from the United States District Court

for the Southern District of Texas

(M-97-CR-326-1)

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January 11, 1999

Before JOLLY, SMITH, and WIENER, Circuit Judges.

PER CURIAM:*

Defendant-Appellant Homero Reyes-De la Cruz (“Reyes”) was

convicted for attempting to enter the United States after having

been previously deported, in violation of 8 U.S.C. § 1326(a). For

the first time on appeal, Reyes contends that the district court

erred in enhancing his sentence by 16 levels pursuant to

§ 2L1.2(b)(1)(A) because (1) the definition of “aggravated felony”

in 8 U.S.C. § 1101(a)(43)(G) is unconstitutionally vague; and (2)

the enhancement was based on a prior marijuana-possession

conviction in Ohio, which Reyes argues is distinguishable from
2

“drug trafficking” as cited to by the guideline. As this issue was

not raised in the district court, we review it for plain error

only. See United States v. Spires, 79 F.3d 464, 465-66 (5th Cir.

1996); see also United States v. Knowles, 29 F.3d 947, 950-51 (5th

Cir. 1994) (alleged constitutional error in criminal conviction

reviewed for plain error, although “errors of constitutional

dimension will be noticed more freely than less serious errors”).

To demonstrate plain error, an appellant must show clear or obvious

error that affects his substantial rights; if he does, this court

has discretion to correct a forfeited error that seriously affects

the fairness, integrity, or public reputation of judicial

proceedings, but is not required to do so. United States v.

Calverley, 37 F.3d 160, 162-64 (5th Cir. 1994) (en banc) (citing

United States v. Olano, 507 U.S. 725, 730-35 (1993)). 

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

1993) (citations omitted); see United States v. Giles, 640 F.2d

621, 628 (5th Cir. 1981) (holding a criminal statute is invalid if

it fails to give fair notice to a person of ordinary intelligence

that his contemplated conduct is an offense). But due process does

not “mandate . . . notice, advice, or a probable prediction of

where, within the statutory range, the guideline sentence will

fall.” United States v. Pearson, 910 F.3d 221, 223 (5th Cir.

1991); see also United States v. Brito, 136 F.3d 397, 407 (5th
3

Cir.) (holding, in challenge to “substantial income or resources”

prong of continuing-criminal-enterprise statute, that “[t]he due

process concern of giving individuals sufficient notice as to what

activities are prohibited is simply not an issue in this case”

because the provision does not make otherwise legal conduct a

crime, but merely enhances the penalty), cert. denied, 118 S. Ct.

2389 (1998). Reyes has not demonstrated reversible error, plain or

otherwise. His sentence is, therefore,

AFFIRMED.