IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 99-40200 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JORGE MONTES-RANGEL,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. L-98-CR-909-1 --------------------

December 14, 1999

Before JOLLY, HIGGINBOTHAM, and BARKSDALE, Circuit Judges.

PER CURIAM:*

Jorge Montes-Rangel pleaded guilty to illegally reentering

the United States after deportation. Montes’s prior deportation

followed a conviction in a Texas court for possession of cocaine,

a felony under Texas law. The district court sentenced Montes to

46 months in prison, after increasing his base offense level

pursuant to U.S.S.G. § 2L1.2(b)(1)(A), which provides a 16-level

enhancement for a defendant previously deported following an

aggravated-felony conviction. Montes argues that his prior

conviction should not be characterized as an aggravated felony

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. No. 99-40200 -2-

because aggravated felonies are defined by statute as “drug

trafficking” crimes. He further contends that construing simple

possession of cocaine as a crime involving “drug trafficking”

violates the notice requirements of the Fifth Amendment’s Due

Process Clause.

Montes’s argument is foreclosed, as he concedes, by this

court’s prior opinion in United States v. Hinojosa-Lopez,

(5th Cir. 1997). As to his constitutional argument, due

process applies to criminal statutes, requiring that they give

fair notice of proscribed conduct. See United States v. Nevers,

(5th Cir. 1993) (citations omitted). Montes’s

challenge is to a sentencing guideline, not to 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,

(5th Cir. 1990).

Because Montes’s Texas felony conviction for possession of

cocaine was an aggravated felony for purposes of

§ 2L1.2(b)(1)(A), it is unnecessary to decide whether his prior

federal conviction for illegally transporting aliens was an

aggravated felony.

AFFIRMED.