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

                                                FILED
                                                                  June 16, 2009
                                 No. 08-50979
                              Conference Calendar             Charles R. Fulbruge III
                                                                      Clerk

UNITED STATES OF AMERICA

                                            Plaintiff-Appellee

v.

JUAN RODRIGUEZ-MONTELVO, also known as Juan Montelvo-Rodriguez,
also known as Juan Cantu-Gonzalez

                                            Defendant-Appellant


                 Appeal from the United States District Court
                      for the Western District of Texas
                         USDC No. 5:08-CR-287-ALL


Before SMITH, BENAVIDES, and HAYNES, Circuit Judges.
PER CURIAM:*
      Juan Rodriguez-Montelvo appeals the sentence imposed following his
guilty plea conviction of violating 8 U.S.C. § 1326(a) and (b)(2) by being found in
the United States without permission, following removal. He contends that the
district court erred by enhancing his sentence pursuant to United States
Sentencing Guideline § 2L1.2(b)(1)(C). Citing Lopez v. Gonzales, 549 U.S. 47
(2006), Rodriguez-Montelvo contends that his second state conviction of


      *
      Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
                                  No. 08-50979

possessing a controlled substance is not a “drug-trafficking offense,” and thus is
not an “aggravated felony” as that term is defined in 8 U.S.C. § 1101(a)(43) for
purposes of § 2L1.2(b)(1)(C). He argues that his second state possession offense
does not correspond to a felony violation of the Controlled Substances Act as
required by Lopez because recidivist proceedings were not invoked in his case.
      In United States v. Sanchez-Villalobos, 412 F.3d 572, 577 (5th Cir. 2005),
this court held that a second state offense of possessing a controlled substance
is considered an “aggravated felony,” for purposes of § 2L1.2(b)(1)(C) because
such an offense, if charged in federal court, could be punished as a felony under
21 U.S.C. § 844(a). In light of Sanchez-Villalobos, the district court did not err
by enhancing Rodriguez-Montelvo’s sentence under § 2L1.2(b)(1)(C). In United
States v. Cepeda-Rios, 530 F.3d 333, 335-36 (5th Cir. 2008), this court affirmed
a defendant’s sentence based on Sanchez-Villalobos and held that the Supreme
Court’s decision in Lopez did not require it to abandon the holding in that case.
Rodriguez-Montelvo concedes that his argument is foreclosed by this court’s
decision in Cepeda-Rios.    He raises his argument solely to preserve it for
Supreme Court review.
      Rodriguez-Montelvo does not allege that the district court committed any
other procedural error in imposing his sentence and does not allege that his
sentence is substantively unreasonable. See Gall v. United States, 128 S. Ct.
586, 597 (2007). Accordingly, the judgment of the district court is AFFIRMED.




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