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

                                                 FILED
                                                                           October 8, 2009

                                       No. 08-41337                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee
v.

FRANCISCO DE JESUS RODRIGUEZ,

                                                   Defendant-Appellant




                   Appeal from the United States District Court
                        for the Southern District of Texas
                           USDC No. 1:08-CR-697-ALL


Before REAVLEY, JOLLY, WIENER, Circuit Judges.
PER CURIAM:*
       Defendant-Appellant Francisco De Jesus Rodriguez (“Rodriguez”) pleaded
guilty to being found unlawfully in the United States after deportation and
following a conviction for an aggravated felony. The pre-sentence investigation
report (“PSR”) included a base level offense of eight, which was increased by
eight to 16 because Rodriguez had two prior felony drug convictions. The United
States Sentencing Guidelines (“U.S.S.G.”) yielded a recommended sentence



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 08-41337

range of 33 to 41 months. The district court sentenced Rodriguez to a 33 month
term of imprisonment.
      Rodriguez appeals his term of imprisonment, contending that the district
court committed reversible error by treating the second of his prior possession
convictions as an aggravated felony. Specifically, he argues that the government
failed to prove that (1) the offense underlying the first such conviction had
become final by the time that he committed the second such offense; and (2) the
second prior possession conviction was secured in compliance with procedural
requirements.
                      I. FACTS AND PROCEEDINGS
A. Facts
      In June 2008, Rodriguez was charged by indictment with violating 8
U.S.C. § 1326(b) for being found in the United States following deportation
without having obtained the consent of the Attorney General to re-apply for
admission. Days later, and without a plea agreement, Rodriguez pleaded guilty
in district court.
      The PSR included a base offense level of eight, which was enhanced
another eight levels on the ground that Rodriguez had been convicted of two
prior state drug possession convictions, qualifying the second as an “aggravated
felony.” The Probation Office reached this enhancement by concluding that the
second conviction for simple possession was a “felony” under the recidivist clause
of 21 U.S.C. § 844 (“§ 844”), and was therefore “drug trafficking” and thus an
“aggravated” felony under 8 U.S.C. § 1101(a)(43)(B) and U.S.S.G.                §
2L1.2(b)(1)(C). The PSR recommended reducing this enhanced level of sixteen
by three for acceptance of responsibility.    In combination with Rodriguez’s
Criminal History Category of VI, this offense level of 13 yielded a sentence range
of 33 to 41 months imprisonment.
B. Proceedings

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       At his sentencing hearing, Rodriguez objected to the PSR’s eight-level
enhancement for his second prior drug possession conviction, contending that it
was not an “aggravated felony” under U.S. S.G. § 2L1.2(b)(1)(C) because his first
prior conviction was “not final” for § 844(a) purposes; Rodriguez asserted that
the enhancement level should have been four and not eight.
       In the face of this objection to the PSR, the government offered, without
objection, the state court indictments and judgments for both prior drug
convictions. The district court overruled Rodriguez’s objection and held that the
two prior convictions qualified the sentence “for an enhancement of eight levels
given the nature and timing of those convictions.” After, the court sentenced
Rodriguez to a term of 33 months in prison, a three-year period of supervised
release, and a $100 special assessment, he timely filed a notice of appeal.
       Rodriguez bases the appeal of his sentence on two grounds. First, he
insists that the second of his possession convictions should not have been
deemed an aggravated felony for purposes of U.S.S.G. § 2L1.2(b)(1)(C) because
the government had not borne its burden of proving that his second possession
offense was committed after his first possession conviction had become final.
Second, he asserted that the government failed to prove that the second
conviction was secured in compliance with 21 U.S.C. § 851.
                            II. STANDARD OF REVIEW
       “[W]hen a district court has imposed a sentence under the [Sentencing]
Guidelines, this court continues after Booker to review the district court's
interpretation and application of the Guidelines de novo.”1




       1
        United States v. Villegas, 404 F.3d 355, 359 (5th Cir. 2005) (referring to United States
v. Booker, 543 U.S. 220 (2005)).


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                                           No. 08-41337

                                       III. ANALYSIS
       As a threshold matter, we conclude that Rodriguez’s second claim is
unavailing.2 In United States v. Cepeda-Rios,3 we held that the government is
not required to comply strictly with the procedural requirements of 21 U.S.C. §
851 when it is not the prosecuting party. The only question for purposes of
sentence enhancement is whether the offense was punishable under 21 U.S.C.
§ 844(a).4 Here, the offense was so punishable.
       Rodriguez’s first claim is likewise unavailing. It is true that in seeking
sentence enhancement, the government has the burden of proving by a
preponderance of the evidence that the sentence qualifies for enhancement.5 For
Rodriguez’s second possession conviction to support enhancement pursuant to
§ 844(a), the government had to prove by a preponderance of the evidence that
the second of his prior possession offenses was committed after the first such
conviction had become final. Specifically, the government was required to show
that the first prior conviction is no longer subject to examination on direct appeal
or to discretionary review by any court.6             The narrow question before us is
whether the government bore its burden of showing such finality of the first
prior conviction before Rodriguez committed the second offense.
       As evidence of finality, the government entered into evidence the first
indictment and judgment of conviction. We find no evidence in the record — and


       2
           Indeed, he so concedes and advances this contention only to preserve it for further
review.
       3
           530 F.3d 333 (5th Cir. 2008).
       4
           Id. at 336 n.11.
       5
           United States v. Herrera-Solorzano, 114 F.3d 48, 50 (5th Cir.1997)
       6
       United States v. Andrade-Aguilar, 570 F.3d 213, 218 (5th Cir. 2009) (internal citations
ommitted).


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                                             No. 08-41337

Rodriguez points to none — that his 1990 conviction was still on appeal (if it ever
was) or under discretionary review in any Texas appellate court or federal court,
at the time in 1993 when he committed his second possession offense. To the
contrary, it is evident from the only evidenced adduced by either party that
approximately three years had passed between the first conviction and the
commission of the second offense.                As we noted in Smith v. Gonzales,7 the
passage of a substantial amount of time without the defendant’s seeking direct
of discretionary appellate review may render that conviction final for § 844(a)
purposes.8 Rodriguez’s window for appealing his 1990 possession conviction to
the Texas appellate court was thirty days.9 Rodriguez has not claimed to have
appealed that conviction, much less to have sought discretionary review, and the
passage of three years would make the possibility of the 1990 conviction not
being final in 1993 unlikely in the extreme. In light of the elapse of three years
between the first conviction and the commission of the second possession offense,
we conclude that the government’s uncontroverted proffer of the 1990 indictment
and judgment of conviction at the sentencing hearing satisfied its burden of
proof.
                                      IV. CONCLUSION
         For the foregoing reasons, the district court’s judgment is, in all respects,
AFFIRMED.




         7
             468 F.3d 272 (5th Cir. 2006).
         8
             Id. at 277.
         9
             Texas R. App. P. 26.2

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