USA v. Garcia-Garcia, No. 07-40955 (5th Cir. 2008)

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IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED June 4, 2008 No. 07-40955 Charles R. Fulbruge III Clerk UNITED STATES OF AMERICA Plaintiff-Appellee v. FERNANDO GARCIA-GARCIA Defendant-Appellant Appeal from the United States District Court for the Southern District of Texas USDC No. 1:06-CR-00221 Before JONES, Chief Judge, and WIENER and CLEMENT, Circuit Judges. PER CURIAM:* Defendant-Appellant Fernando Garcia-Garcia ( Garcia-Garcia ) appeals the sentence he received for his guilty-plea conviction for illegal re-entry, in violation of 8 U.S.C. § 1326. The district court enhanced Garcia-Garcia s sentence by eight levels because it determined that his second state law conviction for possession of a controlled substance qualified as an aggravated felony under the sentencing guidelines. Garcia-Garcia contends that in light * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 07-40955 of the Supreme Court s decision in Lopez v. Gonzales, 127 S. Ct. 625 (2006), his second state law conviction does not qualify as an aggravated felony. Today, in United States v. Cepeda-Rios, No. 07-50731, we rejected precisely the same argument made by Defendant-Appellant in this appeal. For the reasons set forth in Cepeda-Rios, the sentence received by Garcia-Garcia is AFFIRMED. 2

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