     Case: 08-41246     Document: 00511055629          Page: 1    Date Filed: 03/18/2010




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

                                                 FILED
                                                                           March 18, 2010
                                     No. 08-41246
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

TOMAS MARES-CALDERON,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Southern District of Texas
                              USDC No. 7:08-CR-1035


Before KING, STEWART and HAYNES, Circuit Judges.
PER CURIAM:*
        Tomas Mares-Calderon (Mares) has appealed the 33-month sentence
imposed following entry of his guilty plea to being found in the United States
unlawfully following deportation. Mares’s offense level was increased by eight
levels pursuant to U.S.S.G. § 2L1.2(b)(1)(C) because, prior to his deportation in
2006, Mares was convicted in Texas in 1996 of possession of marijuana and in
1999 of possession of a controlled substance.               The second conviction was
regarded as an “aggravated felony” under 8 U.S.C. § 1101(a)(43)(B) and U.S.S.G.

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 08-41246      Document: 00511055629 Page: 2       Date Filed: 03/18/2010
                                   No. 08-41246

§ 2L1.2(b)(1)(C) because it could have been prosecuted as a felony under the
recidivist clause of 21 U.S.C. § 844. Mares contends on appeal that the district
court reversibly erred in imposing the eight-level adjustment. He argues that
his second possession conviction was not punishable as a felony under § 844(a)
because (1) the Government failed to prove that the offense underlying this
conviction was committed after a prior possession conviction had become final;
and (2) the Government failed to prove that the conviction was secured in
compliance with strict procedural requirements comparable to those in 21 U.S.C.
§ 851.
         Ordinarily, this court reviews the district court’s application of the
Sentencing Guidelines de novo and its factual findings for clear error. United
States v. Smith, 440 F.3d 704, 706 (5th Cir. 2006). The Government argues that
Mares’s contention with respect to proof of the finality of the first conviction was
not raised sufficiently below and, therefore, should be reviewed for plain error.
Mares’s written objection was “sufficiently specific to alert the district court to
the nature of the alleged error.” United States v. Neal, 578 F.3d 270, 272-73 (5th
Cir. 2009).
         Simple possession of a controlled substance may be punishable as a felony
under the Controlled Substances Act only if it is committed after a prior
conviction for a controlled substance violation has become final. § 844(a); Smith
v. Gonzales, 468 F.3d 272, 277 (5th Cir. 2006). A conviction is final if it is no
longer subject to challenge on direct appeal or discretionary review by any court.
United States v. Andrade-Aguilar, 570 F.3d 213, 218 (5th Cir. 2009).           The
Government bore the burden of proving finality by a preponderance of the
evidence. See id. at 217. The record contains copies of the charging instrument
and judgment related to the 1996 conviction and the charging instrument and
“record of criminal actions” related to the 1999 conviction. Mares does not
contend (and the record does not reflect) that he appealed or sought
discretionary review of his 1996 conviction.

                                         2
   Case: 08-41246     Document: 00511055629 Page: 3      Date Filed: 03/18/2010
                                  No. 08-41246

      The Government’s burden of showing finality for § 844(a) purposes may
be satisfied in some cases by the passage of a substantial amount of time without
a direct appeal or discretionary review. Id. at 218 & n.6. Under Texas law,
Mares had 30 days from sentencing to appeal his first state possession
conviction. See T EX. R. A PP. P. 26.2(a)(1). The passage of about three years
between his 1996 conviction and the commission of his 1999 offense would make
it extremely unlikely that the 1996 conviction was not final by date on which the
1999 was committed.       See Andrade-Aguilar, 570 F.3d at 218 n.6.          The
Government met its burden of proof with respect to finality of the first state
conviction. See id.
      Mares’s argument concerning § 851 is also unavailing.         Although he
indicates that his argument concerning § 851 is “apparently” foreclosed by this
court’s decision in United States v. Cepeda-Rios, 530 F.3d 333, 335-36 (5th Cir.
2008), he also contends that his argument differs from the one rejected in
Cepeda-Rios. Specifically, he argues that his later possession convictions do not
qualify as aggravated felonies because there has been no showing that a state
prosecutor prosecuting those cases invoked procedures equivalent to those set
out in § 851. As we noted in Cepeda-Rios, “the relevant inquiry under the
sentencing guidelines is whether the crime is punishable under § 844(a).” 530
F.3d at 336 n.11 (emphasis in original). The Government satisfied its burden of
proof in that regard.
      The judgment of the district court is AFFIRMED.




                                       3
