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

                                                                            FILED
                                                                         October 21, 2008
                                     No. 08-50107
                                  Conference Calendar                 Charles R. Fulbruge III
                                                                              Clerk

UNITED STATES OF AMERICA

                                                  Plaintiff-Appellee

v.

URIEL GUTIERREZ-MEDINA, also known as Javier Robert Rocha

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                          USDC No. 3:07-CR-2477-ALL


Before KING, BARKSDALE, and OWEN, Circuit Judges.
PER CURIAM:*
       Uriel Gutierrez-Medina (Gutierrez) appeals the sentence following his
guilty plea conviction for being unlawfully present in the United States following
removal. The district court determined that Gutierrez’s second prior California
conviction for possession of methamphetamine qualified as an “aggravated
felony” under U.S.S.G. § 2L1.2(b)(1)(C).
       Gutierrez argues that, pursuant to the Supreme Court’s decision in Lopez
v. Gonzales, 549 U.S. 47, 127 S. Ct. 625 (2006), his second conviction for simple

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 08-50107

possession of methamphetamine under California law does not constitute an
“aggravated felony.” He contends that his two prior drug possession convictions
did not establish a prior aggravated felony conviction because the Government
did not plead and prove the prior convictions, and he was not convicted under
California recidivist enhancement procedures. He recognizes that the Court in
Lopez, 127 S. Ct. at 630 n.6, observed in a footnote that 21 U.S.C. § 844(a) makes
a second possession conviction a federal felony if the Government shows knowing
possession and proves a prior possession conviction through the procedures
specified in 21 U.S.C. § 851. However, he argues that under Lopez, the second
state possession conviction must be brought under state recidivist procedures
that conform to the procedures in § 844 and § 851.
      We recently rejected the argument raised by Gutierrez. See United States
v. Cepeda-Rios, 530 F.3d 333, 335-36 (5th Cir. 2008). The district court properly
determined that Gutierrez’s second prior California conviction for possession of
methamphetamine was an “aggravated felony” under § 2L1.2(b)(1)(C). See id.
      AFFIRMED.




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