     Case: 09-40934     Document: 00511143874          Page: 1    Date Filed: 06/16/2010




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

                                                 FILED
                                                                            June 16, 2010
                                     No. 09-40934
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

VICTOR JAVIER JIMENEZ-LOPEZ,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Southern District of Texas
                              USDC No. 2:09-CR-145-1


Before BENAVIDES, PRADO, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
        Victor Javier Jimenez-Lopez appeals his 57-month sentence following his
guilty plea conviction for illegal reentry after deportation. Jimenez-Lopez argues
that the district court plainly erred by sentencing him pursuant to 8 U.S.C.
§ 1326(b)(2), which increases the statutory maximum sentence for aliens
previously deported following an aggravated felony conviction. He, therefore,
asks that his case be remanded for reformation of the judgment to reflect his
conviction under § 1326(b)(1).

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-40934   Document: 00511143874 Page: 2       Date Filed: 06/16/2010
                                No. 09-40934

      Jimenez-Lopez argues that his prior state conviction for drug possession
does not qualify as an aggravated felony because the Government did not prove
that he received the benefit of notice and procedural safeguards equivalent to
those outlined in 21 U.S.C. § 851 when he was convicted of that crime. As
Jimenez-Lopez correctly concedes, this argument is foreclosed by our decision in
United States v. Cepeda-Rios, 530 F.3d 333, 335-36 n.11 (5th Cir. 2008). The
Government’s motion for summary affirmance is GRANTED; its alternative
motion for an extension of time to file a brief is DISMISSED as MOOT.
      AFFIRMED.




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