                    UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT
                         _____________________

                                 No. 99-20784
                               Summary Calendar
                            _____________________

                       UNITED STATES OF AMERICA,

                                                     Plaintiff-Appellant,

                                    versus

                      JORGE LUIS TERRAZAS-BARRON,
                     also known as Jorge Terrazas,

                                              Defendant-Appellee.
_________________________________________________________________

           Appeal from the United States District Court
                for the Southern District of Texas
                         (H-99-CR-91-ALL)
_________________________________________________________________

                                June 23, 2000

Before SMITH, BARKSDALE, and PARKER, Circuit Judges.

PER CURIAM:*

     Jorge Luis Terrazas-Barron pleaded guilty to illegal re-entry

into the United States following his earlier deportation, in

violation of 8 U.S.C. § 1326(a).          Because Terrazas’ deportation

followed his 1995 Texas conviction for possession of more than 50

pounds   of    marijuana,     the   Probation   Office   recommended   that

Terrazas’ base offense level be increased by 16 levels, pursuant to

U.S.S.G. § 2L1.2(b)(1)(A), based on Terrazas’ prior “aggravated


     *
      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this opinion should not be published and is not precedent except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.
felony”.     This increase would have given Terrazas a Sentencing

Guideline imprisonment range of 46 to 57 months.          However, the

district court sustained Terrazas’ objection to this proposed

increase, increased   the offense level by only four levels under §

2L1.2(b)(1)(B), and sentenced him to 16 months in prison.             The

Government appeals the sentence.

     In a footnote in his brief, quoting United States v. Riggins,

68 F.3d 479, 1995 WL 610333, at *2 (8th Cir. 1995) (unpublished;

dismissing    Government’s     cross-appeal   of   sentence   based    on

Government’s failure to provide proof of authorization for appeal),

Terrazas asserts that “18 U.S.C. § 3742(b) arguably requires the

United States to provide this Court with proof of the ‘personal

approval of the Attorney General, Solicitor General, or a deputy

solicitor general designated by the Solicitor General’ authorizing

the appeal by the United States Attorney’s office”.

     After Terrazas’ brief was filed, our court, in United States

v. Thibodeaux, ___ F.3d ___, 2000 WL 562191 (5th Cir. 8 May 2000),

dismissed the Government’s appeal of a sentence.          Declining to

develop “any bright-line rules” for demonstrating compliance with

§ 3742(b), our court held dismissal was appropriate because the

Government failed to respond to Thibodeaux’s contention that the

appeal should be dismissed for failure to demonstrate compliance

with § 3742(b).   Id. at *2.    On 17 May, Terrazas cited Thibodeaux,

pursuant to FED. R. APP. P. 28(j).


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      Unlike Thibodeaux, Terrazas does not explicitly seek dismissal

of the Government’s appeal.           Instead, he merely notes that §

3742(b) arguably requires the Government to furnish proof of its

authorization for the appeal.        As our court noted in Thibodeaux, §

3742(b) “does not mention that the approval must be in writing or

that approval must be filed in the record of the case on appeal”.

Id.   Moreover, on 23 May, in response to Terrazas’ Rule 28(j)

submission, the Government provided a copy of a February 2000

memorandum from the Office of the Solicitor General authorizing

this appeal.      Under these circumstances, and in the light of

Thibodeaux’s declining to establish a bright-line rule, Thibodeaux

does not mandate dismissal.

      The Government contends that Terrazas’ 1995 Texas marijuana-

possession conviction was an “aggravated felony” for purposes of

the “aggravated felony” enhancement set forth in § 2L1.2(b)(1)(A);

and that the district court was bound by United States v. Hinojosa-

Lopez, 130 F.3d 691 (5th Cir. 1997), to conclude as much.                  We

review de novo a district court’s legal interpretation of the

Sentencing Guidelines.        E.g., United States v. Rodriguez, 60 F.3d

193, 195 (5th Cir.), cert. denied, 516 U.S. 1000 (1995).

      In Hinojosa-Lopez, the defendant asserted that his Texas

felony conviction for “aggravated unlawful possession of [more than

50 but less than 200 pounds of] marijuana” was not an “aggravated

felony”,   as   that   term   is   used   in   §   2L1.2(b)(2)   (1995)   (the

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predecessor of § 2L1.2(b)(1)(A) in the 1998 Guidelines, applicable

here), because the same crime was only a misdemeanor under the

corresponding federal statute, 21 U.S.C. § 844(a). Hinojosa-Lopez,

130 F.3d at 692-93, 694.           Our court rejected the defendant’s

contention, reasoning that the state conviction was an “aggravated

felony” if “(1) the offense was punishable under the Controlled

Substances Act and (2) it was a felony” under applicable state law.

Id. at 694.   “Aggravated possession of marijuana is a felony under

Texas law.”      Id. (citing TEX. HEALTH & SAFETY CODE ANN. § 481.121

(Vernon 1992); Young v. State, 922 S.W.2d 676, 676 (Tex. Ct. App.

1996)).

     In 1993, the Texas marijuana-possession statute, § 481.121,

was amended, so that possession of between 50 and 2000 pounds of

marijuana became a second-degree felony.        See Hinojosa-Lopez, 130

F.3d at 694 n.2 (citing § 481.121(b)(5) (Vernon Supp. 1997)).

Although the offense is no longer considered an “aggravated” felony

in Texas, this has no bearing on whether it should be considered an

“aggravated felony” for purposes of § 2L1.2(b)(1)(A).         The salient

fact is that possession of more than 50 pounds of marijuana remains

a “felony” under Texas law that is punishable by a sentence of two

to 20 years in prison.       See id. at 694 & n.2.     We conclude that

Hinojosa-Lopez     governs   the    factual   circumstances   of   the   §

2L1.2(b)(1)(A) issue in Terrazas’ case.

     Terrazas has not explicitly disputed that, as a matter of

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statutory construction, his challenge to the § 2L1.2(b)(1)(A)

increase is foreclosed by Hinojosa-Lopez.         See United States v.

Garcia Abrego, 141 F.3d 142, 151 n.1 (5th Cir.) (“in the absence of

any intervening Supreme Court or en banc circuit authority that

conflicts” with the panel decision in question, this court is bound

by the panel decision), cert. denied, 525 U.S. 878 (1998).              He

contends, however, that, under the constitutional “rule of lenity,”

his objection to the increase presents an issue of the first

impression.    This contention is erroneous.

       The rule of lenity fosters the constitutional due-process

principle “that no individual be forced to speculate, at peril of

indictment, whether his conduct is prohibited.”            Dunn v. United

States, 442 U.S. 100, 112 (1979).       “The rule of lenity ... applies

only   when,   after   consulting   traditional   canons    of   statutory

construction, [a court is] left with an ambiguous statute.” United

States v. Shabani, 513 U.S. 10, 17 (1994) (emphasis added).             In

other words, it applies “only if after a review of all applicable

sources of legislative intent the statute remains truly ambiguous”.

United States v. Cooper, 966 F.2d 936, 944 (5th Cir.) (internal

quotation marks and citation omitted), cert. denied, 506 U.S. 980

(1992); see also Albernaz v. United States, 450 U.S. 333, 342

(1981) (“The rule comes into operation at the end of the process of

construing what Congress has expressed, not at the beginning as an

overriding consideration of being lenient to wrongdoers.” (internal

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quotation marks and citation omitted)).       Accordingly, the rule of

lenity is a rule of statutory construction, see Bifulco v. United

States, 447 U.S. 381, 387 (1980); United States v. Brito, 136 F.3d

397, 408 (5th Cir.), cert. denied, 523 U.S. 1128, 524 U.S. 962, 525

U.S. 867 (1998), rather than a separate constitutional framework

for raising claims.

     In declining to follow Hinojosa-Lopez, the district court

neither relied on the rule of lenity nor attempted to distinguish

Hinojosa-Lopez.   Instead,    the   court   relied   on   an   alternative

interpretation of the term “aggravated felony” by the Board of

Immigration Appeals (“BIA”) in a BIA Interim Decision, in lieu of

this court’s interpretation of the same term in nearly identical

factual circumstances.       Accordingly, we VACATE and REMAND for

resentencing in accordance with Hinojosa-Lopez.

                                              VACATED and REMANDED




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