Opinion
No. 08-50437 Conference Calendar.
February 18, 2009.
Joseph H. Gay, Jr, Assistant U.S. Attorney, U.S. Attorney's Office, Western District of Texas, San Antonio, TX, for Plaintiff-Appellee.
Federal Public Defender's Office, Western District of Texas, San Antonio, TX, for Defendant-Appellant.
Appeal from the United States District Court for the Western District of Texas, USDC No. 2:07-CR-750-ALL.
Before HIGGINBOTHAM, DENNIS, and PRADO, Circuit Judges.
Appealing the Judgment in a Criminal Case, Rigoberto Molina-Trujillo presents arguments that he concedes are foreclosed by United States v. Cepeda-Rios, 530 F.3d 333, 335-36 (5th Cir. 2008), which held that even after Lopez v. Gonzales, 549 U.S. 47, 127 S.Ct. 625, 166 L.Ed.2d 462 (2006), a second state conviction for simple possession of a controlled substance qualifies as an aggravated felony that supports the imposition of an eight-level enhancement under U.S.S.G. § 2L1.2(b)(1)(C). The Government's motion for summary affirmance is GRANTED, and the judgment of the district court is AFFIRMED.
There is split in the circuit courts that have addressed this issue subsequent to Lopez. Compare United States v. Pacheco-Diaz, 506 F.3d 545, 550 (7th Cir. 2007) (second state law controlled substance possession conviction constitutes aggravated felony warranting eight-level increase under § 2L1.2(b)(1)(C) with Rashid v. Mukasey, 531 F.3d 438, 446 (6th Cir. 2008)) (holding in removal proceeding that second state conviction for misdemeanor possession of a controlled substance did not constitute drug trafficking crime).