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

                                                FILED
                                                                February 18, 2009
                                No. 08-50437
                             Conference Calendar            Charles R. Fulbruge III
                                                                    Clerk

UNITED STATES OF AMERICA

                                           Plaintiff-Appellee

v.

RIGOBERTO MOLINA-TRUJILLO

                                           Defendant-Appellant


                 Appeal from the United States District Court
                      for the Western District of Texas
                         USDC No. 2:07-CR-750-ALL


Before HIGGINBOTHAM, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
      Appealing the Judgment in a Criminal Case, Rigoberto Molina-Trujillo
presents arguments that he concedes are foreclosed by United States v. Cepeda-
Rios, 530 F.3d 333, 335-36 (5th Cir. 2008), which held that even after Lopez v.
Gonzales, 549 U.S. 47 (2006), a second state conviction for simple possession of
a controlled substance qualifies as an aggravated felony that supports the




      *
      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should not be published and is not precedent except under the limited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. 08-50437

imposition of an eight-level enhancement under U.S.S.G. § 2L1.2(b)(1)(C).** The
Government’s motion for summary affirmance is GRANTED, and the judgment
of the district court is AFFIRMED.




      **
        There is split in the circuit courts that have addressed this issue
subsequent to Lopez. Compare United States v. Pacheco-Diaz, 506 F.3d 545, 550
(7th Cir. 2007) (second state law controlled substance possession conviction
constitutes aggravated felony warranting eight-level increase under
§ 2L1.2(b)(1)(C) with Rashid v. Mukasey, 531 F.3d 438, 446 (6th Cir. 2008)
(holding in removal proceeding that second state conviction for misdemeanor
possession of a controlled substance did not constitute drug trafficking crime).

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