Conference Calendar UNITED STATES OF AMERICA v. Uriel Gutierrez-Medina, also known as Javier Robert Rocha

* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 08-50107
Conference Calendar
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
URIEL GUTIERREZ-MEDINA, also known as Javier Robert Rocha
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:07-CR-2477-ALL
Before KING, BARKSDALE, and OWEN, Circuit Judges.
PER CURIAM:*
Uriel Gutierrez-Medina (Gutierrez) appeals the sentence following his
guilty plea conviction for being unlawfully present in the United States following
removal. The district court determined that Gutierrez’s second prior California
conviction for possession of methamphetamine qualified as an “aggravated
felony” under U.S.S.G. § 2L1.2(b)(1)(C).
Gutierrez argues that, pursuant to the Supreme Court’s decision in Lopez
v. Gonzales, 549 U.S. 47, 127 S. Ct. 625 (2006), his second conviction for simple
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. 08-50107
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possession of methamphetamine under California law does not constitute an
“aggravated felony.” He contends that his two prior drug possession convictions
did not establish a prior aggravated felony conviction because the Government
did not plead and prove the prior convictions, and he was not convicted under
California recidivist enhancement procedures. He recognizes that the Court in
Lopez, 127 S. Ct. at 630 n.6, observed in a footnote that 21 U.S.C. § 844(a) makes
a second possession conviction a federal felony if the Government shows knowing
possession and proves a prior possession conviction through the procedures
specified in 21 U.S.C. § 851. However, he argues that under Lopez, the second
state possession conviction must be brought under state recidivist procedures
that conform to the procedures in § 844 and § 851.
We recently rejected the argument raised by Gutierrez. See United States
v. Cepeda-Rios, 530 F.3d 333, 335-36 (5th Cir. 2008). The district court properly
determined that Gutierrez’s second prior California conviction for possession of
methamphetamine was an “aggravated felony” under § 2L1.2(b)(1)(C). See id.
AFFIRMED.

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