     Case: 08-40503     Document: 00511096674          Page: 1    Date Filed: 04/30/2010




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                  FILED
                                                                            April 30, 2010
                                     No. 08-40503
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

RUBEN RANGEL-IBARRA,

                                                   Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                            USDC No. 1:07-CR-1181-1


Before JONES, Chief Judge, and DAVIS and WIENER, Circuit Judges.
PER CURIAM:*
        Ruben Rangel-Ibarra appeals the 41-month sentence he received for his
conviction for being an alien found unlawfully in the United States after having
been deported following an aggravated felony conviction. He contends that the
district court erred in applying an eight-level enhancement under U.S.S.G.
§ 2L1.2(b)(1)(C).     He argues that his successive drug convictions were not
punishable as a felony under 21 U.S.C. § 844(a), and consequently did not
qualify as an “aggravated felony” for purposes of § 2L1.2(b)(1)(C), because (1) the

        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
   Case: 08-40503     Document: 00511096674 Page: 2          Date Filed: 04/30/2010
                                  No. 08-40503

Government failed to prove that the offenses underlying those convictions were
committed after one of his prior drug convictions had become final and (2) the
Government failed to prove that those convictions were secured in compliance
with notice and procedural requirements that were commensurate to those in
21 U.S.C. § 851.
      Because Rangel-Ibarra preserved these arguments in the district court,
the district court’s application of § 2L1.2(b)(1)(C) is reviewed de novo, and the
district court’s factual findings are reviewed for clear error. Section 2L1.2
adopts the definition of “aggravated felony” contained in 8 U.S.C. § 1101(a)(43).
§ 2L1.2, comment. (n.3(A)). Under § 1101(a)(43)(B), “aggravated felony” means
“illicit trafficking in a controlled substance (as defined in section 802 of Title 21),
including a drug trafficking crime (as defined in section 924(c) of Title 18).”
Under § 924(c)(2), the definition of “drug trafficking crime” includes “any felony
punishable under the Controlled Substances Act” (CSA). Simple possession of
a controlled substance may be punishable as a felony under the CSA only if it is
committed after a prior conviction for a controlled substance violation has
become final. § 844(a); Smith v. Gonzales, 468 F.3d 272, 277 (5th Cir. 2006).
According to the Government, Rangel-Ibarra satisfied the “aggravated felony”
definition under § 1101(a)(43)(B) and § 2L1.2(b)(1)(C) because at least one of his
simple drug-possession offenses was committed after one of his prior drug
convictions had become final.
      A conviction is final if it is no longer subject to challenge on direct appeal
or discretionary review by any court.          United States v. Andrade-Aguilar,
570 F.3d 213, 218 (5th Cir. 2009).          Because the Government sought the
§ 2L1.2(b)(1)(C) enhancement, the Government bore the burden of proving
finality by a preponderance of the evidence. See id. at 217. To establish that
Rangel-Ibarra had at least one drug conviction that was final when he
committed a later drug-possession offense, the Government introduced into
evidence the judgments for two of Rangel-Ibarra’s prior convictions: his

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                                No. 08-40503

November 1996 Florida conviction for trafficking cannabis and his 2004 Texas
conviction for possession of marijuana.      According to the 2004 judgment,
Rangel-Ibarra committed the offense underlying the 2004 conviction on January
1, 2004.
      The Government’s burden of showing finality for § 844(a) purposes may
be satisfied in some cases by the passage of a substantial amount of time without
a direct appeal or discretionary review. Andrade-Aguilar, 570 F.3d at 218 & n.6.
Under Florida law, Rangel-Ibarra’s window for filing a direct appeal of his 1996
conviction was 30 days. See F LA. R. A PP. P. 9.140(b)(3). Rangel-Ibarra has not
asserted that he appealed the 1996 conviction, much less that he sought
discretionary review of the conviction.     The passage of about seven years
between his 1996 conviction and the commission of his 2004 offense would make
it extremely unlikely that the 1996 conviction had not become final by January
2004. See Andrade-Aguilar, 570 F.3d at 218 n.6. The Government’s introduction
of the judgments for Rangel-Ibarra’s 1996 and 2004 drug convictions satisfied
its burden of proof regarding finality. See id.
      Rangel-Ibarra’s argument concerning § 851 is also unavailing. Although
he indicates that his argument concerning § 851 is “apparently” foreclosed by
this court’s decision in United States v. Cepeda-Rios, 530 F.3d 333, 335-36 (5th
Cir. 2008), he also contends that his argument differs from the one rejected in
Cepeda-Rios. Specifically, he argues that his later possession convictions do not
qualify as aggravated felonies because there has been no showing that a state
prosecutor prosecuting those cases invoked procedures equivalent to those set
out in § 851. As we noted in Cepeda-Rios, “the relevant inquiry under the
sentencing guidelines is whether the crime is punishable under § 844(a).”
530 F.3d at 336 n.11 (emphasis in original). The Government satisfied its
burden of proof in that regard.
      The judgment of the district court is AFFIRMED.



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