     Case: 16-40476     Document: 00513795682       Page: 1   Date Filed: 12/13/2016




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                                    United States Court of Appeals
                                                                             Fifth Circuit
                                     No. 16-40476                          FILED
                                                                   December 13, 2016

UNITED STATES OF AMERICA,
                                                                      Lyle W. Cayce
                                                                           Clerk

              Plaintiff - Appellee

v.

EFRAIN PIEDRA-MORALES,

              Defendant - Appellant



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


Before JONES, BARKSDALE, and COSTA, Circuit Judges.
PER CURIAM:
      Efrain Piedra-Morales was caught and pled guilty to illegal reentry in
violation of 8 U.S.C. §1326(a), (b).     Previously, he had been deported three
times from the United States. Piedra-Morales appeals the district court’s
application   of   an   eight-level    aggravated    felony   enhancement            under
U.S.S.G. § 2L1.2(b)(1)(C) for deportation after an earlier aggravated felony
conviction. He contends that his prior convictions for illegal reentry under
8 U.S.C. § 1326(b)(2) are not aggravated felonies because they are predicated
on his prior cocaine possession convictions, which are no longer considered
aggravated felonies under Lopez v. Gonzales, 549 U.S. 47, 50, 60 (2006).
Because the cocaine possession convictions are no longer aggravated felonies,
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                                 No. 16-40476
he argues that his prior illegal reentry convictions are also not aggravated
felonies. We find no error and affirm the sentence.
      The presentence report recommended a base offense level of eight in
accordance with U.S.S.G. § 2L1.2(a) and subtracted three-levels for acceptance
of responsibility, making his total offense level thirteen.      At sentencing,
defense counsel noted their objection to the eight-level enhancement, but said
they “understand that that issue has been foreclosed by the Fifth Circuit and
does not apply.”     The district court agreed with this statement.       Piedra-
Morales’s resulting guidelines sentencing range was 18-24 months in prison
and the district court sentenced him to serve 18 months. Piedra-Morales
timely appealed. With this sentence, he is scheduled for release from custody
in mid-January 2017.
      This court reviews a preserved challenge to the district court’s
application of the Sentencing Guidelines de novo. United States v. Medina-
Torres, 703 F.3d 770, 773 (5th Cir. 2012). Section 2L1.2(b)(1)(C) authorizes an
eight-level enhancement of the base offense level if the defendant was
previously deported after an aggravated felony conviction. An aggravated
felony includes an illegal reentry offense committed by one who has previously
been deported following an aggravated felony conviction.                 8 U.S.C.
§ 1101(a)(43)(O).
      In accordance with defense counsel’s acknowledgement that this issue is
foreclosed by our precedent, our precedential opinion in United States v.
Gamboa-Garcia compels our holding in this case. 620 F.3d 546 (5th Cir. 2010).
There, the defendant likewise challenged an eight-level sentence enhancement
in accordance with § 2L1.2(b)(1)(C).       620 F.3d at 547–48. The defendant
claimed that her prior illegal reentry conviction was not an aggravated felony
because it arose after a conviction for accessory to murder, which was
incorrectly categorized as an aggravated felony. Id. at 548–49. This court
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                                 No. 16-40476
declined to “resolve this interpretive dispute.” We determined instead that the
judgment for the prior illegal reentry conviction specifically indicated that the
defendant pled guilty under § 1326(b)(2) based on an aggravated felony
conviction. Id. at 549. The defendant’s “guilty plea expressly eliminate[d] the
interpretive question she raise[d].” Id.
      Piedra-Morales seeks an escape route from his two prior knowing and
voluntary guilty pleas entered pursuant to § 1326(b)(2).        Piedra-Morales
argues that his case is different from Gamboa-Garcia because the California
felony cocaine possession offenses underlying his prior illegal reentry
conviction no longer qualify as aggravated felonies under Lopez, while the
defendant in Gamboa-Garcia contended that her predicate conviction was
improperly classified at the time of her prior illegal reentry conviction. See
620 F.3d at 548. This distinction is not dispositive under the logic of Gamboa-
Garcia. As noted, that case was resolved based on the defendant’s prior guilty
plea to a § 1326(b)(2) offense and concomitant admission that she was deported
following a conviction for an aggravated felony. 620 F.3d at 549. Permitting
an attack on a prior conviction would “undermin[e] the finality of such
convictions, requiring courts repeatedly to reconsider arcane issues regarding
prior convictions.” Id. Consequently, because Piedra-Morales pled guilty twice
under § 1326(b)(2), we hold that the district court did not err in applying an
eight-level aggravated felony enhancement to the instant, third conviction.
      The sentence imposed by the district court is AFFIRMED.




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