                        REVISED JULY 22, 2008

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

                                                                        FILED
                                                                        June 4, 2008
                                 No. 07-50731
                                                                  Charles R. Fulbruge III
                                                                          Clerk
UNITED STATES OF AMERICA

                                           Plaintiff-Appellee
v.

ROGELIO CEPEDA-RIOS

                                           Defendant-Appellant



                Appeal from the United States District Court
                     for the Western District of Texas


Before JONES, Chief Judge, and WIENER and CLEMENT, Circuit Judges.
PER CURIAM:
      Rogelio Cepeda-Rios (“Cepeda-Rios”) appeals the district court’s imposition
of an eight-level sentence enhancement for his guilty-plea conviction for illegal
re-entry into the United States.     He argues that his prior conviction for
possession of a controlled substance does not qualify as an “aggravated felony”
under the sentencing guidelines. We affirm.
                       I. FACTS AND PROCEEDINGS
      Cepeda-Rios pleaded guilty to illegal re-entry into the United States after
removal, in violation of 8 U.S.C. § 1326.     The presentence report (“PSR”)
recommended an eight-level upward adjustment based on Cepeda-Rios’s prior
                                             No. 07-50731

conviction for the sale of tar heroin, in violation of Section 11352 of the
California Health and Safety Code. Cepeda-Rios filed an objection to the PSR,
arguing that his § 11352 conviction was not an aggravated felony under federal
law.
         At sentencing, the district court overruled Cepeda-Rios’s objection and
imposed an eight-level upward adjustment. The court determined that the
enhancement was appropriate because (1) Cepeda-Rios’s conviction under
§ 11352 was an aggravated felony, and (2) even if the § 11352 conviction alone
did not qualify as an aggravated felony, it could have been charged as a felony
if it had been brought under federal law because Cepeda-Rios had a prior
conviction for possession of a controlled substance. Cepeda-Rios was sentenced
to a twenty-month term of imprisonment. He timely filed a notice of appeal.
                                             II. ANALYSIS
A. Standard of Review
         We review the district court’s application of the sentencing guidelines de
novo.1
B. Merits
         Section 2L1.2 of the Sentencing Guidelines provides for an eight-level
upward adjustment if the defendant has been convicted of an aggravated felony.
A commentary to the guidelines states that the term “aggravated felony” has the
same meaning in §2L1.2 as it has in 8 U.S.C. § 1101(a)(43).2 Section 1101(a)(43)
defines “aggravated felony” as “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).”3 Section 924(c) defines “drug trafficking crime” as


         1
             United States v. Armendariz, 451 F.3d 352, 357 (5th Cir. 2006).
         2
             U.S.S.G. § 2L1.2 cmt. n.3(A).
         3
             8 U.S.C. § 1101(a)(43)(B) (emphasis added).

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                                        No. 07-50731

“any felony punishable under the Controlled Substances Act [“(CSA”)] (21 U.S.C.
801 et seq.).”4 Importantly to this appeal, simple possession is punishable as a
felony under the CSA if the defendant “commits such offense after a prior
conviction . . . for any drug, narcotic, or chemical offense chargeable under the
law of any State.”5
      In Lopez v. Gonzales, the Supreme Court held that “a state offense
constitutes a ‘felony punishable under the Controlled Substances Act’ only if it
proscribes conduct punishable as a felony under that federal law.”6 Therefore,
we must look only to whether Cepeda-Rios’s conviction would be considered an
“aggravated felony” under federal law; whether the crime is classified as a felony
or misdemeanor by the state of conviction is irrelevant.
      The government concedes that Cepeda-Rios’s conviction for possession
under § 11352, standing alone, is not an aggravated felony. The government
insists, however, that the enhancement applies because Cepeda-Rios’s second
conviction for possession would have been a felony if prosecuted under the CSA.
We agree.
      In United States v. Sanchez-Villalobos, a case decided pre-Lopez, we
upheld the application of the eight-level enhancement under § 2L1.2(b)(1)(C)
when the defendant had two prior state convictions for possession of a controlled
substance.7 We concluded that the defendant was eligible for the enhancement
because his second conviction “could have been punished under § 844(a) as a




      4
          18 U.S.C. § 924(c)(2) (emphasis added).
      5
          21 U.S.C. § 844(a).
      6
          127 S. Ct. 625, 633 (2006).
      7
          412 F.3d 572, 577 (5th Cir. 2005).

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                                       No. 07-50731

felony with a penalty of up to two years imprisonment.”8 Although this was an
alternative holding, it is binding nonetheless.9
       As noted, Sanchez-Villalobos was decided pre-Lopez, so we must determine
whether the Supreme Court’s decision requires us to abandon our holding in
Sanchez-Villalobos that a second conviction for simple possession qualifies as an
aggravated felony under the sentencing guidelines. We conclude that we are not
so compelled.
       The holding in Lopez makes clear that the relevant inquiry is whether the
prior crime at issue qualifies as a felony under federal law. Although the Lopez
Court did not address whether a second conviction for possession constitutes an
aggravated felony, it did recognize the applicability of the recidivist provisions
in § 844(a). Specifically, the Court stated
       Congress did counterintuitively define some possession offenses as
       “illicit trafficking.” Those state possession crimes that correspond
       to felony violations of one of the three statutes enumerated in
       § 924(c)(2), such as possession of cocaine base and recidivist
       possession, see 21 U.S.C. § 844(a), clearly fall within the definitions
       used by Congress in 8 U.S.C. § 1101(a)(43)(B) and 18 U.S.C.
       § 924(c)(2), regardless of whether these federal possession felonies
       or their state counterparts constitute “illicit trafficking in a
       controlled substance” or “drug trafficking” as those terms are used
       in ordinary speech.10
       We find nothing in the Court’s opinion in Lopez that overrules our holding
in Sanchez-Villalobos. The analysis employed there by the Supreme Court is
consistent with our earlier “hypothetical” approach in Sanchez-Villalobos, viz.,

       8
           Id.
       9
         Pruitt v. Levi Strauss & Co., 932 F.2d 458, 465 (5th Cir. 1991) (“This circuit follows
the rule that alternative holdings are binding precedent and not obiter dictum.”), abrogated
on other grounds by Floors Unlimited, Inc. v. Fieldcrest Cannon, Inc., 55 F.3d 181, 185-86 (5th
Cir. 1995); McLellan v. Miss. Power & Light Co., 545 F.2d 919, 925 n.21 (5th Cir. 1977) (“It has
long been settled that all alternative rationales for a given result have precedential value.”).
       10
            127 S. Ct. at 630 n.6.

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                                        No. 07-50731

a state crime is to be deemed a felony if it would have been prosecuted as such
under federal law.
       Cepeda-Rios does not challenge the validity or finality of his prior state
convictions.11      Under the CSA, if his second possession offense had been
prosecuted under federal law, it would have been punishable as a felony. “[I]t
would not, as he contends, only have been punishable as a misdemeanor.”12 This
is why Cepeda-Rios’s second state conviction for possession must be treated as
an aggravated felony for purposes of his sentence.
                                    III. CONCLUSION
       For the foregoing reasons, the judgment of the district court is
AFFIRMED.




       11
          Cepeda-Rios argues that the government’s failure to comply with the procedural
requirements of § 851(a) prohibit the court from enhancing his sentence under § 844(a) based
on his first state possession conviction. Although Cepeda-Rios’s argument would have merit
if the government was actually seeking to prosecute him under § 844(a), he was not prosecuted
under that section. Thus, the relevant inquiry under the sentencing guidelines is whether the
crime is punishable under § 844(a). The United States was not a party to Cepeda-Rios’s state
law convictions; it had no opportunity and was not required to comply with the procedural
requirements of § 851(a). 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.
       12
            Sanchez-Villalobos, 412 F.3d at 577.

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