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

                                                                            FILED
                                                                         February 11, 2009
                                     No. 08-40486
                                   Summary Calendar                   Charles R. Fulbruge III
                                                                              Clerk

UNITED STATES OF AMERICA

                                                  Plaintiff-Appellee

v.

LUIS ALBERTO ROSALES-HURTADO

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                          USDC No. 1:07-CR-1167-ALL


Before SMITH, DeMOSS, and BENAVIDES, Circuit Judges.
PER CURIAM:*
       Luis Alberto Rosales-Hurtado (Rosales) appeals the 30-month sentence
imposed following his guilty-plea conviction under 8 U.S.C. § 1326(a) and (b)(2)
for being found unlawfully present after removal from the United States. He
argues that the district court erred in determining that his prior state conviction
for possession of a controlled substance was an “aggravated felony” for purposes
of U.S.S.G. § 2L1.2(b)(1)(C).



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 08-40486

      Rosales maintains that, for purposes of 21 U.S.C. § 844(a), the record did
not sufficiently show that his first state drug-possession conviction was final
before he committed the second drug-possession offense. Rosales is incorrect.
At sentencing, the Government submitted a copy of a judgment showing that
Rosales was convicted in Texas, pursuant to a guilty plea, in January 2002 for
possession of a controlled substance (Xanax). There is no indication in the record
that Rosales appealed this conviction or that he had received permission to do
so. Thus, based on the evidence in the record, Rosales’s January 2002 conviction
became final in February 2002. See TEX. R. APP. P. 26.2(a); Jones v. State, 77
S.W.3d 819, 822-23 (Tex. Crim. App. 2002). The charging instrument from
Rosales’s June 2005 Texas marijuana-possession conviction indicates that
Rosales committed this later offense in March 2005, after his January 2002
conviction had become final.
      Rosales also argues that because his state possession convictions were not
subject to a state recidivist enhancement, they should not be considered
aggravated felonies for sentencing purposes under § 2L1.2(b)(1)(C).           He
acknowledges our holding to the contrary in United States v. Cepeda-Rios, 530
F.3d 333, 335-36 (5th Cir. 2008), but argues that it did not address the notice
issues presented in this case.
      In Cepeda-Rios, 530 F.3d at 335-36, we held that Lopez v. Gonzales, 549
U.S. 47 (2006), did not require that this court abandon its holding in United
States v. Sanchez-Villalobos, 412 F.3d 572, 577 (5th Cir. 2005), that a second
conviction for simple possession qualified as an aggravated felony which
supported the imposition of the eight-level enhancement under § 2L1.2(b)(1)(C).
Because Rosales has two prior state convictions for possession of a controlled
substance and the 2005 marijuana-possession conviction would have been
punishable as a felony under § 844(a) if prosecuted in federal court, the district
court did not err in treating Rosales’s 2005 state drug-possession conviction as



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                                   No. 08-40486

an aggravated felony for sentencing purposes under § 2L1.2(b)(1)(C).             See
Cepeda-Rios, 530 F.3d at 335-36.
      We also rejected Cepeda-Rios’s argument that the Government’s failure
to comply with the procedural requirements of 21 U.S.C. § 851(a) prohibited the
district court from enhancing his sentence under § 2L1.2(b)(1)(C) and § 844(a)
based on his first state possession conviction. Id. at 336 n.11. This court noted
that the relevant inquiry was whether the crime was punishable under § 844(a),
rather than whether the Government actually sought to prosecute the defendant
under § 844(a). Id. This court observed further that “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. Likewise, Rosales did not
challenge the existence, validity, or finality of his prior drug possession
convictions at his federal sentencing hearing or on appeal.            Because the
Government did not actually seek to prosecute Rosales under the Controlled
Substances Act, and was not a party to Rosales’s state court convictions, § 851(a)
notice was not necessary. See id. Further, under Lopez, a federal sentencing
court “must look only to whether [a defendant’s] conviction would be considered
as an ‘aggravated felony’ under federal law; whether the crime is classified as a
felony or misdemeanor by the state of conviction is irrelevant.” See id. at 334.
Similarly, the state notice requirements are also irrelevant to the determination
of whether the § 2L1.2 enhancement is warranted. See id.
      AFFIRMED.




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