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

                                                FILED
                                                                 June 16, 2009
                                No. 08-40779
                             Conference Calendar             Charles R. Fulbruge III
                                                                     Clerk

UNITED STATES OF AMERICA

                                           Plaintiff-Appellee

v.

CRUZ ALFARO-CARDENAS

                                           Defendant-Appellant


                 Appeal from the United States District Court
                      for the Southern District of Texas
                         USDC No. 1:08-CR-280-ALL


Before SMITH, BENAVIDES, and HAYNES, Circuit Judges.
PER CURIAM:*
      Cruz Alfaro-Cardenas (Alfaro) appeals the sentence imposed following his
guilty plea conviction of violating 8 U.S.C. § 1326 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), Alfaro
contends that his second state conviction of possessing a controlled substance is



      *
      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should not be published and is not precedent except under the limited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. 08-40779

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 Alfaro’s sentence under § 2L1.2(b)(1)(C).        See also § 844(a)
(providing that simple possession is punishable as a felony if the defendant
commits the offense after a prior conviction for any drug, narcotic, or chemical
offense chargeable under the law of any State has become final). 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.
Alfaro 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.
      Alfaro 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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