* 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. 98-20093

Summary Calendar

 

UNITED STATES OF AMERICA,

 Plaintiff-Appellee,

versus

JUAN AREVALO-SANCHEZ, also known

as Javier Cuevas-Karr, also known

as Javier Cuevas, also known as

Juan Jose Gutierrez,

 Defendant-Appellant.

____________________________________

Appeal from the United States District Court

for the Southern District of Texas

USDC No. H-97-CR-222-1

_____________________________________

September 23, 1998

Before KING, BARKSDALE and STEWART, Circuit Judges.

PER CURIAM:*

JuanArevalo-Sanchez appealsthe sentence imposed by the district court following his guiltyplea conviction ofillegalreentry into the United Statesfollowing deportation, a violation of 8 U.S.C.

§§ 1326. Arevalo-Sanchez challenges the characterization of his prior Texas convictions for

possession of cocaine as aggravated felonies and the concomitant 16-levelincrease in his base offense

level under by U.S.S.G. § 2L1.2(b)(2) (Nov. 1995). He also contends that the notice and specificity

requirements of due process are violated by designating his convictions for possession of an amount
of cocaine consistent with personal use as “drug trafficking.” He has withdrawn his challenge to the

sufficiency of the indictment. 

We review a sentence imposed under the Sentencing Guidelines to determine “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. Hinojosa-Lopez, 130 F.3d 691, 693 (5th Cir. 1997)(citation and internal quotations omitted). We

review findings of fact for clear error, but we conduct a de novo review of the district court’s

application of the Sentencing Guidelines. Id.

The district court applied the Sentencing Guidelinesin effect at the time ofArevalo-Sanchez’s

arrest in August 1997, rather than those in effect at his sentencing in January 1998. This was error.

See 18 U.S.C. § 3553(a)(4)(A); cf. United States v. Suarez, 911 F.2d 1016, 1022 (5th Cir. 1990)

(holding that sentencing guidelines in effect at time of offense are to be used to calculate defendant’s

sentence if use of guidelinesin effect on date ofsentencing would violate Ex Post Facto Clause). As

there is no assertion in the record that ex post facto principles were encroached, the correct guideline

for calculating appellant’s sentence was U.S.S.G. § 2L1.2(b)(1)(A) (Nov. 1997). However, the

substance of the relevant portions of § 2L1.2 did not change from the 1995 to the 1997 editions. 

In cases involving a conviction for unlawful reentry into the United States, the defendant’s

offense level isincreased by 16 levels if the defendant previously was deported after a conviction for

an aggravated felony. § 2L1.2(b)(1)(A) (Nov. 1997). 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.” Hinojosa-Lopez, 130 F.3d at 694. Possession of cocaine

is punishable under the Controlled Substances Act,see 21 U.S.C. § 844(a), and possession of cocaine

is a felony under Texas law. See TEX. HEALTH & SAFETY CODE ANN. § 481.115(b) (West 1992 &

1994). Therefore, Arevalo-Sanchez’s argument is foreclosed by this court’s opinion in HinojosaLopez.

Arevalo-Sanchez contends that the term “drug trafficking” as cited to by the Guidelines is

unconstitutionally vague and does not provide notice that it applies to mere possession of drugs.
 

 

“A criminal statute is void for vagueness under the Due Process Clause of the Constitution

when it failsto provide a person of ordinary intelligence fair notice of the conduct it proscribes.” See

United States v. Nevers, 7 F.3d 59, 61 (5th Cir. 1993) (citations omitted). 

Arevalo-Sanchez’s constitutional argument is unfounded. His challenge is to a sentencing

guideline, not to a criminalstatute. “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.2d 221, 223 (5th Cir. 1991); cf. United States v. Brito, 136 F.3d 397, 407 (5th Cir.)

(holding, in challenge to “substantial income or resources” prong of continuing-criminal-enterprise

statute, that “[t]he due process concern of giving individualssufficient notice asto 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).

AFFIRMED.