IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-40469 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ANTONIO PEREZ,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. L-00-CR-1301-1 -------------------- February 21, 2002

Before JOLLY, JONES, and BENAVIDES, Circuit Judges.

PER CURIAM:*

Antonio Perez appeals his guilty-plea conviction and

sentence for illegal reentry, in violation of

.

He argues, for the first time on appeal, that his indictment

violates the Fifth and Sixth Amendments because it does not

allege general intent. As Perez concedes, however, his argument

is foreclosed. See United States v. Guzman-Ocampo,

(5th Cir. 2000), cert. denied,

(2001); see

also United States v. Berrios-Centeno,

(5th

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 01-40469 -2-

Cir.), cert. denied,

(2001). He raises it only to

preserve the issue for Supreme Court review.

Perez next argues that he should not have received a 16-

level sentencing increase, pursuant to U.S.S.G. § 2L1.2(b)(1)(A),

based on his prior conviction for possession of cocaine because

simple possession is not an aggravated felony. This argument is

similarly foreclosed, as Perez also apparently concedes. See

United States v. Hinojosa-Lopez,

(5th Cir.

1997).

Notwithstanding that fact, Perez contends that this court’s

construction of the term “aggravated felony” for purposes of the

16-level enhancement violates the notice and specificity

requirements of the Due Process Clause. Because his challenge is

to a sentencing guideline and not a criminal statute, due process

is not implicated. See United States v. Pearson,

(5th Cir. 1990).

Perez alternatively contends that the rule of lenity

requires this court to construe the term “drug-trafficking

offense,” an operative definition for aggravated felony for

purposes of the 16-level enhancement, to exclude state

convictions for mere possession of drugs such as his own which

would be only misdemeanors under federal law. He concedes that

the argument is also foreclosed but seeks to preserve it for

Supreme Court review. Perez is correct that the argument is

foreclosed. See Hinojosa-Lopez,

; see also

United States v. Rivera,

(5th Cir. 2001); No. 01-40469 -3-

United States v. Hernandez-Avalos,

, 508-10 & n.2

(5th Cir.), cert. denied,

(2001).

The district court’s judgment is AFFIRMED. His motion to

supplement the appellate record with a copy of his objections to

the PSR is DENIED as unnecessary.

AFFIRMED; MOTION DENIED.