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

                                                                            FILED
                                                                         October 21, 2008
                                     No. 07-40950
                                  Conference Calendar                 Charles R. Fulbruge III
                                                                              Clerk

UNITED STATES OF AMERICA

                                                  Plaintiff-Appellee

v.

SANTOS PEDRO GARCIA-MARTINEZ

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 1:07-CR-541-1


Before KING, BARKSDALE, and OWEN, Circuit Judges.
PER CURIAM:*
       Santos Pedro Garcia-Martinez (Garcia) appeals the sentence he received
for his guilty plea conviction for illegal reentry under 8 U.S.C. § 1326. The
district court imposed an eight-level enhancement under the Sentencing
Guidelines because it determined that Garcia’s second state conviction for
possession of a controlled substance qualified as an “aggravated felony.” Garcia
contends that, in light of Lopez v. Gonzales, 549 U.S. 47 (2006), his second
possession offense does not qualify as an aggravated felony because he did not


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 07-40950

receive the type of procedural safeguards required by 21 U.S.C. § 851 before a
second simple possession offense is punishable as a felony under the recidivist
provisions of the Controlled Substances Act.
      While Garcia’s appeal was pending, we decided United States v. Cepeda-
Rios, 530 F.3d 333 (5th Cir. 2008). We rejected the argument made here by
Garcia and affirmed the district court’s determination that a second state
possession offense qualifies as an aggravated felony without a showing that the
State provided the type of procedural safeguards required under § 851. Cepeda-
Rios, 530 F.3d at 335-36 & n.11. As here, the appellant in Cepeda-Rios “had the
opportunity to object to the finality of his first state possession conviction at his
federal sentencing hearing, but he did not do so.” Id. at 335 n.11.
      The judgment of the district court is AFFIRMED.




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