* 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that this opinion should not be published and is not precedent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. 00-40023

Summary Calendar

_____________________

UNITED STATES OF AMERICA

Plaintiff - Appellee

v.

ALEJANDRO AGUILAR-CABELLERO

Defendant - Appellant

_________________________________________________________________

Appeal from the United States District Court

for the Southern District of Texas

USDC No. L-99-CR-696-1

_________________________________________________________________

August 30, 2000

Before KING, Chief Judge, and JONES and STEWART, Circuit Judges.

PER CURIAM:*

Following entry of his guilty plea, Alejandro AguilarCabellero was convicted of illegally re-entering the United

States pursuant to 8 U.S.C. § 1326 and was sentenced to a

seventy-month term of imprisonment. He contends that because his

prior state-court conviction for mere possession of cocaine

cannot qualify as an “aggravated felony,” the sentencing court

erred in basing his sentence on a 16-level enhancement under 
2

§ 2L1.2(b)(1)(A) of the Sentencing Guidelines. See U.S. SENTENCING

GUIDELINES MANUAL § 2L1.2(b)(1)(A) (1998). 

Section 2L1.2 reflects implementation of § 1326’s

enhancement for prior convictions for committing aggravated

felonies. See 8 U.S.C. § 1326(b)(2) (providing that those

individuals convicted of illegal entry after removal who were

previously convicted for committing aggravated felonies face up

to a twenty-year sentence as compared to the two-year sentence

described in § 1326(a) or the ten-year sentence described in

§ 1326(b)(1)); United States v. Zavala-Sustaita, 214 F.3d 601,

603 (5th Cir. 2000). The Application Notes for § 2L1.2 provide

that the term “aggravated felony” is defined at 8 U.S.C.

§ 1101(a)(43). See U.S. SENTENCING GUIDELINES MANUAL § 2L1.2 comment,

n.1. Section 1101(a)(43) lists as an aggravated felony “a drug

trafficking crime” as that term is defined in 18 U.S.C. § 924(c). 

See 8 U.S.C. § 1101(a)(43). Aguilar-Cabellero contends that

considering mere possession of cocaine as a “drug trafficking

crime” violates both the due process requirement of notice and

specificity and the rule of lenity.

Aguilar-Cabellero recognizes that our opinion in United

States v. Hinojosa-Lopez, 130 F.3d 691 (5th Cir. 1997), may be

dispositive of his claim. He distinguishes that case on both its

facts and the issue presented to the court. The defendant in

Hinojosa-Lopez was convicted of possessing more than fifty pounds

of marijuana. Aguilar-Cabellero points to the fact that, in
3

contrast, he was convicted of simple cocaine possession, which

would be a misdemeanor under federal law. Aguilar-Cabellero also

notes that Hinojosa-Lopez asserted that his prior conviction did

not warrant the 16-level enhancement because it too would have

been a misdemeanor under federal law. Thus, Aguilar-Cabellero

contends, our statement in Hinojosa-Lopez that marijuana

possession was a drug-trafficking crime under § 924(c) was mere

dicta and need not be followed.

Aguilar-Cabellero looks to the dictionary and to legislative

history of 18 U.S.C. § 924(c) for support for his contention that

“drug-trafficking” does not include mere possession and for his

argument that a person of reasonable intelligence could not be

expected to understand that mere possession would be equated with

drug trafficking. He also argues that, because § 924(c)’s

language is at least ambiguous, the rule of lenity dictates that

it be interpreted in a manner so as to yield a lesser sentence.

We find that Hinojosa-Lopez is indeed dispositive. The

differences Aguilar-Cabellero identifies in the two cases do not

render our prior holding inapplicable. We agreed in HinojosaLopez with the five circuits that had by then addressed the issue

that a “prior conviction constitutes an aggravated felony for

purposes of § 2L1.2(b)[(1)(A)] if (1) the offense was punishable

under the Controlled Substances Act and (2) it was a felony.” 130

F.3d at 694. This holding was based in part on language of

§ 924(c)(2), which defines a “drug trafficking crime” as
1 We note that the Application Notes for § 2L1.2 also

define “felony offense” broadly. See U.S. Sentencing Guidelines

Manual § 2L1.2 comment, n.1 (defining “felony offense” to mean

“any federal, state, or local offense punishable by imprisonment

for a term exceeding one year”). 

4

including “any felony punishable under the Controlled Substances

Act,” 18 U.S.C. § 924(c)(2), and of the Controlled Substances

Act, which defines “felony” as “any Federal or State offense

classified by applicable Federal or State law as a felony.” 21

U.S.C. § 802(13).1 Aguilar-Cabellero’s prior conviction for

possession of cocaine meets the definition of an aggravated

felony under Hinojosa-Lopez. 130 F.3d at 694.

Even if we did not find Hinojosa-Lopez controlling, we would

have to reject Aguilar-Cabellero’s challenge. His vagueness

arguments are directed at a statute, § 924(c), that the

sentencing court did not apply to his case. Instead, § 924(c) is

relevant only to an interpretation of the term “aggravated

felony” as used in the Sentencing Guidelines. We must therefore

assess Aguilar-Cabellero’s arguments within the context of those

Guidelines. As we have previously held, “[d]ue process does not

mandate . . . either notice, advice, or a probable prediction of

where, within the statutory range, the guideline sentence will

fall.” United States v. Pearson, 910 F.2d 221, 223 (5th Cir.

1990); see also United States v. Brierton, 163 F.3d 1133, 1139

(7th Cir. 1999) (concluding that the Sentencing Guidelines “are

not susceptible to attack under the vagueness doctrine”), reh’g
5

granted Mar. 25, 1999; United States v. Wivell, 893 F.2d 156,

160 (8th Cir. 1990) (“Because there is no constitutional right to

sentencing guidelines — or, more generally, to a less

discretionary application of sentences than that permitted prior

to the Guidelines — the limitations the Guidelines place on a

judge’s discretion cannot violate a defendant’s right to due

process by reason of being vague.”). In fact, Aguilar-Cabellero

received notice in his pre-sentencing report that he qualified

for a 16-level enhancement under § 2L1.2(b)(1)(A) based on his

prior conviction for cocaine possession. 

Aguilar-Cabellero’s rule of lenity argument must also be

rejected. Even if our task involved a determination of Congress’

intent in enacting and amending § 924(c) (rather than a

determination of the meaning of “aggravated felony” in 

§ 2L1.2(b)(1)(A)), that § 924(c) could be interpreted in a

different manner does not make the rule of lenity applicable. 

See Muscarello v. United States, 524 U.S. 125, 138-39 (1998)

(“The simple existence of some statutory ambiguity, however, is

not sufficient to warrant application of [the rule of lenity],

for most statutes are ambiguous to some degree. . . . To invoke

the rule, we must conclude that there is a grievous ambiguity or

uncertainty in the statute.” (internal citations and quotation

marks omitted)); Zavala-Sustaita, 214 F.3d at 607 n.11 (noting

that the rule of lenity “applies only when ‘a reasonable doubt

persists about a statute’s intended scope even after resort to
2 Aguilar-Cabellero looks to Aguirre v. INS, 79 F.3d 315

(2d Cir. 1996) for support for his contentions. However, the

Second Circuit has explicitly stated that Aguirre’s definition of

“aggravated felony” does not control applications of

§ 2L1.2(b)(1)(A). See Pornes-Garcia, 171 F.3d at 143. 

6

the language and structure, legislative history, and motivating

policies of the statute.’” (quoting Moskal v. United States, 498

U.S. 103, 108 (1990))). As it stands, circuit courts considering

cases involving prior convictions for possession of a controlled

substance are in agreement that simple possession can be

considered an “aggravated felony” under § 2L1.2(b)(1)(A). See

United States v. Ibarra-Galindo, 206 F.3d 1337, 1341 (9th Cir.

2000); United States v. Pornes-Garcia, 171 F.3d 142, 146 (2d

Cir.), cert. denied, 120 S. Ct. 191 (1999); Hinojosa-Lopez, 130

F.3d at 694; United States v. Briones-Mata, 116 F.3d 308, 309

(8th Cir. 1997); United States v. Cabrera-Sosa, 81 F.3d 998, 1000

(10th Cir.), cert. denied, 519 U.S. 885 (1996).2 This

substantial agreement alone suggests to us that there is

insufficient ambiguity to warrant application of the rule of

lenity. See Ibarra-Galindo, 206 F.3d at 1341. 

For the foregoing reasons, we AFFIRM.