                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                               F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT                  August 17, 2005

                                                            Charles R. Fulbruge III
                                                                    Clerk
                              No. 04-41378
                          Conference Calendar



UNITED STATES OF AMERICA,

                                      Plaintiff-Appellee,

versus

REYMUNDO TOLEDO-FLORES,

                                      Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. 5:04-CR-546-ALL
                       --------------------

Before BENAVIDES, CLEMENT, and PRADO, Circuit Judges.

PER CURIAM:*

     Reymundo Toledo-Flores (Toledo) appeals the two-year

sentence imposed following his guilty-plea conviction for

improper entry by an alien.    Toledo argues that the district

court erred by imposing the eight-level increase in U.S.S.G.

§ 2L1.2(b)(1)(C) (2003) for having a prior aggravated felony

conviction.    Toledo contends that his Texas state conviction for

possession of cocaine is not a qualifying aggravated felony

because it is not a felony under the federal Controlled


     *
       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this opinion should not be published and is not precedent except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. 04-41378
                                -2-

Substances Act.   Although Toledo conceded before the district

court that this argument was foreclosed by United States v.

Rivera, 265 F.3d 310 (5th Cir. 2001), and United States v.

Hinojosa-Lopez, 130 F.3d 691 (5th Cir. 1997), on appeal he

asserts that these decisions are not binding because they

conflict with Jerome v. United States, 318 U.S. 101 (1943).

     Our precedent is clear that Congress has made a “deliberate

policy decision to include as an ‘aggravated felony’ a drug crime

that is a felony under state law but only a misdemeanor under the

[Controlled Substances Act].”        United States v. Hernandez-Avalos,

251 F.3d 505, 510 (5th Cir. 2001) (internal quotation marks and

citation omitted).   A prior conviction for a state drug offense

will qualify as an aggravated felony under U.S.S.G.

§ 2L1.2(b)(1)(C) if it is punishable under the Controlled

Substances Act and it is punishable by more than a year of

imprisonment under the applicable state law.        See United States

v. Sanchez-Villalobos, 412 F.3d 572, 576 (5th Cir. 2005).

Toledo’s prior offense meets this definition.        See 21 U.S.C.

§ 844(a) (2003); TEX. HEALTH   AND   SAFETY CODE ANN. §§ 481.102(3)(D) &

481.115 (Vernon 2001); TEX. PENAL CODE ANN. § 12.35(a) (Vernon

2001).   Accordingly, the judgment of the district court is

AFFIRMED.
