UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff - Appellee,	No. 97-4139
v.	(D.C. No. 97-CR-95)
ROBERTO RODRIQUEZ-VASQUEZ, a/k/a Roberto Rodriguez-Martinez, a/k/a Blas R. Valdez, a/k/a Blas Rincon-Valdez, a/k/a Rogelio Medina, a/k/a Francisco Valdez, a/k/a Miguel Rincon-Valdez,	(D. Utah)
Defendant - Appellant.

ORDER AND JUDGMENT*

Before ANDERSON, McKAY, and LUCERO, Circuit Judges.

After examining the briefs and the appellate record, this panel has determined unanimously to grant the parties' request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. The case is therefore ordered submitted without oral argument.

Defendant Roberto Rodriguez-Vasquez pled guilty to one count of violating 8 U.S.C. § 1326, reentry of a deported alien. Defendant appeals a sentence enhancement imposed pursuant to 8 U.S.C. § 1326(b)(2) for illegal reentry after a prior deportation following a conviction for an aggravated felony.

In February of 1996, Defendant was charged and convicted of a second- degree felony, namely, violating Utah Code Annotated § 58-37-8(1)(a)(ii) by knowingly and intentionally distributing cocaine. Defendant does not challenge, nor can there be any serious question, that distribution of a controlled substance is a felony under both federal and Utah state law and therefore qualifies as an "aggravated felony" under 8 U.S.C. §§ 1101(a)(43)(B) and 1326. See 21 U.S.C. § 841(a)(1); Utah Code Ann. § 58-37-8(1)(a)(ii). Instead, Defendant argues that he was convicted of distributing what he claims was a counterfeit substance and his penalty under state law is a misdemeanor, not a felony.

This is not the proper forum for Defendant to challenge the validity of his underlying state conviction. See Custis v. United States, 511 U.S. 485, 496-97 (1994); United States v. Simpson, 94 F.3d 1373, 1380 (10th Cir.), cert. denied, U.S. , 117 S. Ct. 411 (1996). Because Defendant does not complain of a violation of the right to counsel or in any other way challenge the constitutionality of his state conviction, we affirm Defendant's 8 U.S.C. § 1326

sentence and conviction.

AFFIRMED.

Entered for the Court

Monroe G. McKay

Circuit Judge