IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 97-40183

_____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

LUIS LAURO HINOJOSA-LOPEZ,

Defendant-Appellant.

_________________________________________________________________

Appeal from the United States District Court

for the Southern District of Texas 

_________________________________________________________________

December 4, 1997

Before REYNALDO G. GARZA, KING, and BENAVIDES, Circuit Judges.

KING, Circuit Judge:

Defendant-appellant Luis Lauro Hinojosa-Lopez appeals the

sentence imposed upon him by the district court after he pled

guilty to a one-count indictment charging him with unlawful

presence in the United States following deportation. He claims

that the district court incorrectly added sixteen points to his

offense level on the basis of his prior state felony conviction

for possession of marijuana. He also argues that the government

failed to prove all of the necessary elements of the offense of

which he was convicted. Finding no error, we affirm the district

court’s judgment of conviction and sentence. 
2

I. FACTUAL & PROCEDURAL BACKGROUND

Luis Lauro Hinojosa-Lopez pled guilty to a one-count

indictment charging him with unlawful presence in the United

States following deportation pursuant to 8 U.S.C. § 1326(a),

(b)(2) (1994). In exchange for Hinojosa-Lopez’s guilty plea, the

government agreed to recommend the maximum credit for acceptance

of responsibility and a sentence at the low end of the applicable

Sentencing Guidelines range. The Presentence Investigation

Report (“PSR”) indicated that Hinojosa-Lopez’s previous

convictions included a Texas conviction for “aggravated unlawful

possession of marijuana,” for which he had received a five-year

prison sentence. Based on that Texas conviction, the PSR stated

that Hinojosa-Lopez’s base offense level of eight should be

increased by four points because he had been deported after

conviction of a felony. See U.S. SENTENCING GUIDELINES MANUAL

§ 2L1.2(a), (b)(1) (1995). The PSR also indicated that HinojosaLopez was entitled to a two-point reduction for acceptance of

responsibility, see id. § 3E1.1(a), resulting in a total offense

level of ten, which, in combination with a criminal history

category of III, produced a guidelines sentencing range of ten to

sixteen months of imprisonment. Neither the government nor

Hinojosa-Lopez objected to these findings. 

At the initial sentencing hearing, the district court

queried whether Hinojosa-Lopez’s Texas conviction for aggravated

possession of marijuana was an aggravated felony within the

meaning of § 2L1.2(b)(2) of the Sentencing Guidelines. Section
3

2L1.2(b)(2) requires a sixteen-point increase in the offense

level rather than the four-point increase mandated by

§ 2L1.2(b)(1). See id. § 2L1.2(b)(1), (2). As neither side was

prepared to address this issue, the judge continued the

sentencing hearing. When the sentencing hearing resumed, defense

counsel confirmed that cases from every circuit that had

considered the issue indicated that a sixteen-point increase in

Hinojosa-Lopez’s offense level pursuant to § 2L1.2(b)(2) was

appropriate, but he nevertheless asked the court to sentence

Hinojosa-Lopez according to the original PSR. 

The district court found that Hinojosa-Lopez’s aggravated

possession of marijuana conviction qualified as an aggravated

felony and applied the sixteen-point increase pursuant to

§ 2L1.2(b)(2) of the Sentencing Guidelines. The court then

granted Hinojosa-Lopez a three-point decrease for acceptance of

responsibility, resulting in a guidelines sentencing range of

forty-six to fifty-seven months of imprisonment. However,

because the court found that the PSR overstated Hinojosa-Lopez’s

criminal history, the court decreased the criminal history

category to II and sentenced Hinojosa-Lopez to forty-two months

of imprisonment.

II. DISCUSSION

A. Application of § 2L1.2(b)(2)

Hinojosa-Lopez argues that the district court erred in

imposing a sixteen-point enhancement pursuant to § 2L1.2(b)(2) of

the Sentencing Guidelines. He contends that the term “aggravated
 

1 The government contends that this court should review

the district court’s application of § 2L1.2(b)(2) only for plain

error because Hinojosa-Lopez did not object at sentencing. 

Hinojosa-Lopez, however, contends that our consideration of this

issue is not limited to plain error review. He argues that the

fact that the district court itself raised the issue of whether

his prior conviction constituted an aggravated felony indicates

that the court had an adequate opportunity to consider the issue. 

Because we conclude that the district court’s application of

§ 2L1.2(b)(2) was correct under either standard of review, we

decline to address this issue. We therefore assume, without

deciding, that Hinojosa-Lopez adequately preserved this ground of

error for appellate review.

4

felony” as used in § 2L1.2(b)(2) does not include his Texas

felony conviction for possession of marijuana because that crime

is only a misdemeanor under federal law. See 21 U.S.C. § 844(a)

(1994).

This court’s review of a sentence imposed under the

Sentencing Guidelines is limited to “a determination 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. Matovsky, 935 F.2d 719, 721 (5th Cir. 1991). We

will reverse the trial court’s findings of fact only if they are

clearly erroneous, but “[w]e review a claim that the district

court erred in applying U.S.S.G. § 2L1.2(b)(2) instead of

§ 2L1.2(b)(1) de novo.”1 United States v. Reyna-Espinosa, 117

F.3d 826, 828 (5th Cir. 1997).

Section 2L1.2(b)(2) of the Sentencing Guidelines provides

that the defendant’s offense level should be increased by sixteen

points “[i]f the defendant previously was deported after a

conviction for an aggravated felony.” U.S. SENTENCING GUIDELINES
5

MANUAL § 2L1.2(b)(2) (1995). Application Note 7 to § 2L1.2

defines the term “aggravated felony,” in pertinent part, as

follows: 

“Aggravated felony,” as used in subsection (b)(2),

means . . . any illicit trafficking in any controlled

substance (as defined in 21 U.S.C. § 802), including

any drug trafficking crime as defined in 18 U.S.C.

§ 924(c)(2) . . . . The term “aggravated felony”

applies to offenses described in the previous sentence

whether in violation of federal or state law . . . .

Id. § 2L1.2 Application Note 7. 

Marijuana is a “controlled substance.” 21 U.S.C. §§ 802(6),

812 Schedule I(c)(10) (1994). In pertinent part, 18 U.S.C.

§ 924(c)(2) defines a “drug trafficking crime” as “any felony

punishable under the Controlled Substances Act (21 U.S.C. § 801

et seq).” 18 U.S.C. § 924(c)(2) (1994). Hinojosa-Lopez contends

that this language indicates that in order to qualify as an

aggravated felony, the crime must be classified as a felony by

the Controlled Substances Act. We disagree.

Although this is an issue of first impression before this

court, it has been addressed by several other circuits. In

United States v. Restrepo-Aguilar, 74 F.3d 361 (1st Cir. 1996),

the First Circuit held that the defendant’s prior state

conviction for simple possession of cocaine qualified as an

aggravated felony under § 2L1.2(b)(2) despite the fact that the

same offense was punishable only as a misdemeanor under federal

law. Id. at 364-65. Looking to the interaction between the

Sentencing Guidelines and the applicable federal statutes, the

court held that 18 U.S.C. § 924(c)(2) defines a “drug trafficking
6

crime” as “encompassing two separate elements: (1) that the

offense be punishable under the Controlled Substances Act (or one

of the other two statutes identified); and (2) that the offense

be a felony.” Id. at 364. The court then explained that 

a state drug offense is properly deemed a “felony”

within the meaning of 18 U.S.C. § 924(c)(2) as

incorporated by application note 7 to U.S.S.G. § 2L1.2,

if the offense is classified as a felony under the law

of the relevant state, even if the same offense would

be punishable only as a misdemeanor under federal law.

 

Id. at 365. As the defendant’s prior conviction was a felony

under applicable state law and was punishable under the

Controlled Substances Act, the court held that § 2L1.2(b)(2)

applied. Id. 

We agree with the reasoning of the First Circuit in

Restrepo-Aguilar and of the four other circuits that have

considered this issue. See, e.g., United States v. Briones-Mata,

116 F.3d 308, 310 (8th Cir. 1997) (“We believe the definitions of

the terms at issue indicate that Congress made a deliberate

policy decision to include as an ‘aggravated felony’ a drug crime

that is a felony under state law but only a misdemeanor under the

[Controlled Substances Act].”); United States v. Garcia-Olmedo,

112 F.3d 399, 400-01 (9th Cir. 1997) (holding that prior Arizona

felony convictions for possession of marijuana that also would

have been punishable under 21 U.S.C. § 844(a) constituted

aggravated felonies under § 2L1.2(b)(2)); United States v.

Cabrera-Sosa, 81 F.3d 998, 1000 (10th Cir.) (holding that a prior

New York felony conviction for possession of cocaine that also

would have been punishable under 21 U.S.C. § 844(a) constituted
 

2 In 1993, the statute was amended to delete subsection

(c); possession of more than 50 but less than 200 pounds of

marijuana is now denominated a felony in the second degree. See

TEX. HEALTH & SAFETY CODE ANN. § 481.121(b)(5) (Vernon Supp. 1997). 

A second degree felony is punishable by a sentence of two to

twenty years and a fine not to exceed $10,000. TEX. PEN. CODE ANN.

§ 12.33 (Vernon 1994).

7

an aggravated felony under § 2L1.2(b)(2)), cert. denied, 117 S.

Ct. 218 (1996); United States v. Polanco, 29 F.3d 35, 38 (2d Cir.

1994) (“Because Polanco’s [New York] felony conviction was for an

offense punishable under the Controlled Substances Act, one of

the statutes enumerated under section 924(c)(2), the offense

rises to the level of ‘aggravated felony’ under section

2L1.2(b)(2) and 8 U.S.C. § 1326(b)(2) regardless of the quantity

or nature of the contraband or the severity of the sentence

imposed.”). Thus, Hinojosa-Lopez’s 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. 

Simple possession of marijuana is punishable under the

Controlled Substances Act, albeit as a misdemeanor. 21 U.S.C.

§ 844(a) (1994). The statute under which Hinojosa-Lopez was

convicted in 1991 was the Texas Controlled Substances Act, TEX.

HEALTH & SAFETY CODE ANN. § 481.121 (Vernon 1992), which states that

the knowing or intentional possession of more than fifty but less

than two hundred pounds of marijuana is an “aggravated offense,”

punishable for a life term or a term of not more than ninety-nine

nor less than five years of imprisonment and by a fine not to

exceed $50,000.2 Id. § 481.121(d)(1). Aggravated possession of
8

marijuana is a felony under Texas law. See id.; Young v. State,

922 S.W.2d 676, 676 (Tex. App.--Beaumont 1996, pet. ref’d). 

Thus, for purposes of § 2L1.2, Hinojosa-Lopez’s Texas conviction

was an aggravated felony because his offense was a felony that

also was punishable under the Controlled Substances Act. 

B. Sufficiency of the Factual Basis Supporting the Guilty Plea

Hinojosa-Lopez next argues that his conviction was invalid

because the government failed to prove all of the elements of a

violation of 8 U.S.C. § 1326. He argues that in order to prove

him guilty of violating the statute, the government had to show

that he was “arrested and deported” or “excluded and deported.” 

He claims that the proof offered by the government only showed

that he was deported and did not reflect whether the deportation

was preceded by arrest or exclusion. This argument lacks merit. 

Federal Rule of Criminal Procedure 11(f) requires that the

sentencing court satisfy itself that an adequate factual basis

exists to demonstrate that the defendant committed the charged

offense. United States v. Adams, 961 F.2d 505, 508 (5th Cir.

1992). “The acceptance of a guilty plea is deemed a factual

finding that there is an adequate factual basis for the plea.” 

Id. at 509. We will reverse this finding only if it was clearly

erroneous. Id. 

In the instant case, the indictment alleged that HinojosaLopez was both arrested and deported. We have held that, “[i]f

sufficiently specific, an indictment or information can be used

as the sole source of the factual basis for a guilty plea.” Id.
9

In this case, however, the government also summarized the facts

surrounding Hinojosa-Lopez’s prior arrest and deportation, and

Hinojosa-Lopez agreed to the facts as stated by the prosecutor. 

Indeed the district court was extremely thorough and specifically

questioned Hinojosa-Lopez about each fact presented by the

government, including his arrest in 1991 prior to his

deportation. As a result, we do not think that the factual basis

was insufficient to support Hinojosa-Lopez’s guilty plea. 

III. CONCLUSION

For the foregoing reasons, we AFFIRM the judgment of the

district court.