USA v. Godoy-Jimenez, No. 07-41183 (5th Cir. 2008)

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IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED No. 07-41183 Conference Calendar October 21, 2008 Charles R. Fulbruge III Clerk UNITED STATES OF AMERICA Plaintiff-Appellee v. JULIO CESAR GODOY-JIMENEZ Defendant-Appellant Appeal from the United States District Court for the Southern District of Texas USDC No. 1:07-CR-626-ALL Before KING, BARKSDALE, and OWEN, Circuit Judges. PER CURIAM:* Julio Cesar Godoy-Jimenez appeals the 34-month sentence imposed by the district court following his guilty plea conviction for illegal reentry, in violation of 8 U.S.C. § 1326. Godoy-Jimenez contends that the district court erred in applying an eight-level enhancement pursuant to U.S.S.G. § 2L1.2(b)(1)(C) based on his two prior state convictions for possession of a controlled substance. Citing Lopez v. Gonzales, 549 U.S. 47 (2006), Godoy-Jimenez argues that the eight-level * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. No. 07-41183 enhancement was not warranted because he was not convicted as a recidivist for the second state conviction for possession of a controlled substance and therefore that the offense did not qualify as an aggravated felony under the Sentencing Guidelines. Lopez has not altered our holding in United States v. Sanchez-Villalobos, 412 F.3d 572 (5th Cir.2005), that a second state conviction for simple possession qualifies as an aggravated felony sufficient to support the imposition of the eight-level enhancement under § 2L1.2(b)(1)(C). United States v. Cepeda-Rios, 530 F.3d 333, 335-36 (5th Cir. 2008). Thus, regardless of how Godoy-Jimenez s state possession offense would be characterized under state law, his second state conviction for possession is punishable as an aggravated felony for sentencing purposes. See id; Sanchez-Villalobos, 412 F.3d at 577. The judgment of the district court is AFFIRMED. 2

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