     Case: 09-40494     Document: 00511027569          Page: 1    Date Filed: 02/12/2010




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

                                                  FILED
                                                                          February 12, 2010
                                     No. 09-40494
                                  Conference Calendar                  Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

JUANA MIREYA PENA-DE JUAREZ,

                                                   Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                            USDC No. 1:08-CR-1155-1


Before GARZA, DENNIS, and ELROD, Circuit Judges.
PER CURIAM:*
        Juana Mireya Pena-De Juarez (Pena) appeals the sentence imposed
following her guilty plea conviction of violating 8 U.S.C. § 1326 by being found
in the United States without permission, following removal. She contends that
the district court erred by enhancing her offense level by eight, pursuant to
United States Sentencing Guideline § 2L1.2(b)(1)(C), based on her two state drug
possession convictions. Citing Lopez v. Gonzales, 549 U.S. 47 (2006), Pena
contends that the definition of “drug trafficking” does not include simple

        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
   Case: 09-40494    Document: 00511027569 Page: 2        Date Filed: 02/12/2010
                                 No. 09-40494

possession offenses and thus her state convictions are not aggravated felonies
as that term is defined in 8 U.S.C. § 1101(a)(43) for purposes of § 2L1.2(b)(1)(C).
She further argues that her second state drug possession offense does not
correspond to a felony violation of the Controlled Substances Act because
recidivist proceedings were not invoked in her case.
      In United States v. Cepeda-Rios, 530 F.3d 333, 335-36 (5th Cir. 2008), we
held that, even after Lopez, a second state conviction for simple possession of a
controlled substance qualifies as an aggravated felony that supports the
imposition of the eight-level enhancement under § 2L1.2(b)(1)(C). Accordingly,
the judgment of the district court is AFFIRMED.




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