USA v. Examine Aurelien

Filing 920060411

Opinion

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[DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT FILED ________________________ U.S. COURT OF APPEALS No. 05-15414 Non-Argument Calendar ________________________ D. C. Docket No. 05-20323-CR-DLG UNITED STATES OF AMERICA, ELEVENTH CIRCUIT APRIL 11, 2006 THOMAS K. KAHN CLERK Plaintiff-Appellee, versus EXAMINE AURELIEN, Defendant-Appellant. ________________________ Appeal from the United States District Court for the Southern District of Florida _________________________ (April 11, 2006) Before TJOFLAT, BLACK and MARCUS, Circuit Judges. PER CURIAM: Examine Aurelien appeals his sentence imposed after he pled guilty to illegal re-entry after deportation. At sentencing, the district court enhanced his base offense level under U.S.S.G. 2L1.2(b)(1)(C) based on a prior state felony conviction for possession of cocaine. Aurelien asserts this Court should overrule its precedent and find an "aggravated felony" under 2L1.2(b)(1)(C) does not include state felonies that would only be punishable as a federal misdemeanor. We review a district court's interpretation of the Guidelines de novo. United States v. Simon, 168 F.3d 1271, 1272 (11th Cir. 1999). Under 2L1.2(b)(1)(C), if a defendant was deported previously after a "conviction for an aggravated felony," the base offense level should be increased by eight levels. In Simon, we held a drug offense meets the definition of "aggravated felony" if two criteria are met: (1) the offense must be punishable under the Controlled Substances Act, and (2) the offense must be a felony. Simon, 168 F.3d at 1272. Simon held a state felony conviction for possession of cocaine satisfied these two criteria, and therefore qualified as an "aggravated felony." Id. "[O]nly the Supreme Court or this Court sitting en banc can judicially overrule a prior panel decision." United States v. Marte, 356 F.3d 1336, 1344 (11th Cir. 2004). Aurelien's argument is foreclosed by our decision in Simon. The district court enhanced Aurelien's base offense level because he had a prior Florida state 2 conviction for possession of cocaine, which, under Simon, is an "aggravated felony." Simon, 168 F.3d 1272. To the extent Aurelien argues this Court should overrule the prior panel decision, that argument is without merit as only the Supreme Court or this Court sitting en banc may do so. Marte, 356 F.3d 1344. The district court did not err in following Simon and applying U.S.S.G. 2L1.2(b)(1)(C). Accordingly, we affirm Aurelien's sentence. AFFIRMED. 3

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