Conference Calendar UNITED STATES OF AMERICA v. Santos Pedro Garcia-Martinez

* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 07-40950
Conference Calendar
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
SANTOS PEDRO GARCIA-MARTINEZ
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:07-CR-541-1
Before KING, BARKSDALE, and OWEN, Circuit Judges.
PER CURIAM:*
Santos Pedro Garcia-Martinez (Garcia) appeals the sentence he received
for his guilty plea conviction for illegal reentry under 8 U.S.C. § 1326. The
district court imposed an eight-level enhancement under the Sentencing
Guidelines because it determined that Garcia’s second state conviction for
possession of a controlled substance qualified as an “aggravated felony.” Garcia
contends that, in light of Lopez v. Gonzales, 549 U.S. 47 (2006), his second
possession offense does not qualify as an aggravated felony because he did not
United States Court of Appeals
Fifth Circuit
F I L E D
October 21, 2008
Charles R. Fulbruge III
Clerk

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No. 07-40950
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receive the type of procedural safeguards required by 21 U.S.C. § 851 before a
second simple possession offense is punishable as a felony under the recidivist
provisions of the Controlled Substances Act.
While Garcia’s appeal was pending, we decided United States v. Cepeda-
Rios, 530 F.3d 333 (5th Cir. 2008). We rejected the argument made here by
Garcia and affirmed the district court’s determination that a second state
possession offense qualifies as an aggravated felony without a showing that the
State provided the type of procedural safeguards required under § 851. Cepeda-
Rios, 530 F.3d at 335-36 & n.11. As here, the appellant in Cepeda-Rios “had the
opportunity to object to the finality of his first state possession conviction at his
federal sentencing hearing, but he did not do so.” Id. at 335 n.11.
The judgment of the district court is AFFIRMED.

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