United States Court of Appeals

Fifth Circuit

FILED

January 3, 2007

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 05-41627

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

PABLO ESTRADA-MENDOZA, also known as Ignacio Chavez-Mendoza,

Defendant-Appellant.

--------------------

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 5:05-CR-997-ALL

--------------------

Before HIGGINBOTHAM, SMITH, and DEMOSS, Circuit Judges.

PER CURIAM:

Pablo Estrada-Mendoza (Estrada) pleaded guilty to illegal

reentry after deportation in violation of 8 U.S.C. § 1326(a) and

(b)(2). Estrada’s presentence investigation report (PSR) set his

base offense level at 8 and added 8 levels for his prior Texas

felony conviction for possession of a controlled substance, which

the PSR characterized as an “aggravated felony” under U.S.S.G. §

2L1.2(B)(1)(C). After a 3-level reduction for acceptance of

responsibility, Estrada’s total offense level was 13. With a

criminal history category of VI, his sentencing guidelines

imprisonment range was 33 to 41 months. 
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Estrada objected to the 8-level increase for the controlled

substance offense on the ground that it should not be considered an

aggravated felony because, although it was a felony under Texas

law, it would be a misdemeanor under the federal Controlled

Substances Act (CSA). The district court overruled the objection

and sentenced Estrada to serve 33 months in prison. Applying the

recent decision of the Supreme Court in Lopez v. Gonzales, 2006 WL

3487031 (U.S. Dec. 5, 2006), we vacate in part and remand for

resentencing. 

The district court’s ruling on Estrada’s objection was

consistent with our holding in United States v. Hinojosa-Lopez, 130

F.3d 691 (5th Cir. 1997). In that case, we held that the § 2L1.2

increase for an aggravated felony is proper for a prior state

felony drug conviction even though the same conduct would be a

misdemeanor under the CSA. Hinojosa-Lopez, 130 F.3d at 693-94. 

This court has repeatedly relied on the holding of

Hinojosa-Lopez to dispose of criminal cases with the same issue.

One of those cases is United States v. Toledo-Flores, 149 F. App’x

241, 242 (5th Cir. 2005). Reymundo Toldeo-Flores had been

convicted of illegal entry. On appeal, he argued that his state

felony conviction for possession of cocaine did not qualify as an

aggravated felony because it was a misdemeanor under the CSA. We

affirmed, relying on Hinojosa-Lopez. Id.

In an unrelated case, the Eighth Circuit affirmed the Board of

Immigration Appeals’ order removing alien Jose Antonio Lopez on the
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ground that he had previously been convicted of an aggravated

felony under the Immigration and Nationality Act (INA). Lopez v.

Gonzales, 417 F.3d 934, 937 (8th Cir. 2005). Lopez’s aggravated

felony was a state drug felony, but the same conduct would be a

misdemeanor under the CSA. Id.

Both Toledo-Flores and Lopez petitioned the Supreme Court for

writs of certiorari, arguing that Hinojosa-Lopez and similar cases

were wrongly decided. Brief of Petitioner, Toledo-Flores v. United

States, No. 05-7664, 2005 WL 3940988, *11 (U.S. Nov. 15, 2005);

Brief of Petitioner, Lopez v. Gonzales, No. 05-547, 2005 WL

2875037, *13-15 (U.S. Oct. 31, 2005). The Supreme Court granted

certiorari in both cases and heard oral argument in both on the

same day. Toledo-Flores v. United States, 126 S. Ct. 1652 (2006);

Lopez v. Gonzales, 126 S. Ct. 1651 (2006). The Supreme Court

thereafter dismissed the writ of certiorari in Toledo-Flores as

improvidently granted, 2006 WL 3487254 (Dec. 5, 2006), and, on the

same day, issued an opinion in Lopez, 2006 WL 3487031. 

The Supreme Court began its opinion by stating that whether a

crime is an “aggravated felony” has implications under both the

section of the INA at issue in that case and the section of the

Guidelines at issue in this one, the latter because the Guidelines

adopted the INA definition of “aggravated felony.” Id. at *2. It

then stated that it had granted certiorari in Lopez to resolve a

circuit split, citing Hinojosa-Lopez and other cases, both criminal

and immigration. Id. at *3 n.3. The Court then analyzed whether
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an alien may be penalized under the INA for an “aggravated felony”

when the crime was a felony under state law but would be a

misdemeanor under the CSA. Id. at *3-7. 

The Supreme Court’s analysis began with the provision of the

INA that penalizes an alien for a prior “aggravated felony” if the

alien had been convicted of “illicit trafficking in a controlled

substance...including a drug trafficking crime (as defined in

section 924(c) of title 18).” 8 U.S.C. § 1101(a)(43)(B); Lopez,

2006 WL 3487031, *3. Under 18 U.S.C. § 924(c), “the term ‘drug

trafficking crime’ means any felony punishable under the Controlled

Substances Act . . . .” Lopez, 2006 WL 3487031, *3. Mere

possession of a controlled substance is not a felony under the CSA.

21 U.S.C. § 844(a); Lopez, 2006 WL 3487031, *3. The Supreme Court

held, therefore, that the INA, 8 U.S.C. § 1101(a)(43)(B), does not

penalize an alien for mere possession of a controlled substance.

Lopez, 2006 WL 3487031, *7. The Court reversed the Eight Circuit’s

judgment affirming the BIA’s order removing Lopez. Id.

Given the Court’s reference to the Guidelines, its citation to

Hinojosa-Lopez, and its interpretation of a phrase directly adopted

by the Guidelines, Lopez ineluctably applies with equal force to

immigration and criminal cases. The Government agrees. As Estrada

was sentenced under now-rejected jurisprudence, we vacate his

sentence and remand for resentencing.

Estrada also challenges his conviction and sentence by arguing

that, in light of Apprendi v. New Jersey, 530 U.S. 466 (2000), §
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1 All pending motions are denied.

1326(b)’s treatment of prior felony and aggravated felony

convictions as sentencing factors rather than elements of the

offense that must be found by a jury is unconstitutional. This

argument is foreclosed by Almendarez-Torres v. United States, 523

U.S. 224, 235 (1998). See United States v. Garza-Lopez, 410 F.3d

268, 276 (5th Cir.), cert. denied, 126 S. Ct. 298 (2005). Estrada

concedes as much, but he raises the argument to preserve it for

further review. 

AFFIRMED IN PART; VACATED IN PART AND REMANDED.1