IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 99-20933 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

HECTOR AURELIO SANCHEZ-ZUNIGA, also known as Hector Sanchez,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. H-99-CR-183-1 -------------------- August 23, 2000

Before KING, Chief Judge, and POLITZ and WIENER, Circuit Judges.

PER CURIAM:*

Hector Aurelio Sanchez-Zuniga (Sanchez) appeals the sentence

imposed following his guilty plea conviction for illegal reentry

into the United States in violation of

. Sanchez

challenges a sixteen-level increase to his base offense level

pursuant to U.S.S.G. § 2L1.2. Sanchez’s argument that mere

possession of cocaine does not qualify as an “aggravated felony”

for purposes of § 2L1.2 is foreclosed by our decision in United

States v. Hinojosa-Lopez,

(5th Cir. 1997).

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 99-20933 -2-

In Hinojosa-Lopez, we determined that a prior conviction

constitutes an aggravated felony for purposes of § 2L1.2 if

“(1) the offense was punishable under the Controlled Substances

Act and (2) it was a felony.”

. Hinojosa-Lopez’s

rationale applies to the instant case. Possession of cocaine is

punishable under the Controlled Substances Act, and such

possession is a felony under Texas law. See

(a);

TEX. HEALTH & SAFETY CODE ANN. §§ 481.102(3)(D), 481.115 (West

2000).

Sanchez acknowledges that his appellate arguments are at

least partially foreclosed by Hinojosa-Lopez but argues that a

determination that he committed a drug-trafficking offense when

he “merely possessed cocaine violates common sense, the rule of

lenity, and the due process requirement of notice and

specificity.” “The rule of lenity . . . applies only when, after

consulting traditional canons of statutory construction, [a court

is] left with an ambiguous statute.” United States v. Shabani,

(1994) (emphasis added). The term “aggravated

felony” was not so ambiguous as to require an application of the

rule of lenity. See Hinojosa-Lopez,

.

Sanchez’s due process argument also is unconvincing.

Sanchez is challenging a sentencing guideline, not 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). No. 99-20933 -3-

This appeal borders on being frivolous. We caution counsel.

Counsel has no duty to bring frivolous appeals; the opposite is

true. See United States v. Burleson,

(5th Cir.

1994).

The judgment of the district court is AFFIRMED.