United States v. Rodriguez-Nunez

* 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that this opinion should not be published and is not precedent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. 01-20273
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DOMINGO RODRIGUEZ-NUNEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-00-CR-746-ALL
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October 29, 2001
Before WIENER, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Domingo Rodriguez-Nunez appeals his sentence from his
guilty-plea conviction for being found illegally in the United
States. See 8 U.S.C. § 1326(a), (b). He argues that the
district court erred in applying a 16-level “aggravated felony”
increase, pursuant to U.S.S.G. § 2L1.2(b)(1)(A), because the rule
of lenity requires the court to interpret the term “drug
trafficking crime” under the guideline and the relevant statutes
to exclude his state felony conviction for possession of a
controlled substance. Rodriguez-Nunez acknowledges that his

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No. 01-20273
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argument is foreclosed by this court’s decision in United States
v. Hinojosa-Lopez, 130 F.3d 691, 693-94 (5th Cir. 1997). He
seeks to preserve the issue for possible review by the Supreme
Court.
The district court did not err in applying U.S.S.G.
§ 2L1.2(b)(1)(A). Hinojosa-Lopez, 130 F.3d at 693-94; see United
States v. Hernandez-Avalos, 251 F.3d 505, 508-09 (5th Cir. 2001),
cert. denied, (U.S. Oct. 1, 2001) (No. 01-5773).
AFFIRMED.

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