United States v. Medina-Camposano

* 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that this opinion should not be published and is not precedent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.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-41260
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE SANTOS MEDINA-CAMPOSANO,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. B-99-CR-245-1
--------------------
August 1, 2000
Before REAVLEY, DAVIS, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Jose Santos Medina-Camposano (Medina) appeals the sentence
imposed by the district court following his guilty-plea
conviction of illegal reentry into the United States following
deportation in violation of 8 U.S.C. § 1326. Medina challenges
the characterization of his prior Texas conviction for cocaine
possession as an "aggravated felony" offense, which includes drug
trafficking, and the concomitant sixteen-level increase in his
base offense level under U.S.S.G. § 2L1.2(b)(1)(A). He also
argues that the notice and specificity requirements of due

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process are violated by designating his conviction of cocaine
possession as "drug trafficking."
We review the district court's application of the Sentencing
Guidelines de novo and its factual findings for clear error. See
United States v. Stevenson, 126 F.3d 662, 664 (5th Cir. 1997).
Medina's argument that mere possession of a controlled
substance does not constitute "drug trafficking," and therefore
is not an "aggravated felony" for purposes of § 2L1.2(b), even if
it were not foreclosed by our decision in United States v.
Hinojosa-Lopez, 130 F.3d 691, 693-94 (5th Cir. 1997), is
unavailing. A "drug trafficking crime" is defined in 18 U.S.C.
§ 924(c)(2) to include "any felony punishable under the
Controlled Substances Act (21 U.S.C. § 801, et seq.) . . . ." As
the offense of possession of cocaine is punishable under the
Controlled Substances Act, see 21 U.S.C. § 844(a), this argument
must fail.
Medina's contention that the term "drug trafficking" as used
by the Sentencing Guidelines is unconstitutionally vague and does
not provide adequate notice is likewise unavailing. Medina is
challenging a sentencing guideline, not a criminal statute. "Due
process does not mandate . . . notice, advice, or a probable
prediction of where, within the statutory range, the guideline
sentence will fall." United States v. Pearson, 910 F.2d 221, 223
(5th Cir. 1990).
Finally, Medina argues that the rule of lenity requires that
he be given a lesser sentence because the term "aggravated
felony" is subject to different interpretations. We are

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No. 99-41260
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unpersuaded. The rule of lenity promotes 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 still 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. 1992)(citation and internal quotation
marks 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. We have already expressed our interpretation of
the term "aggravated felony" in our decision in Hinojosa-Lopez.
See Hinojosa-Lopez, 130 F.3d at 693-94.
Accordingly, the district court's judgment is AFFIRMED.

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