United States v. Enrique Sanchez-Montes ( 2010 )

Case: 09-50222 Document: 00511326301 Page: 1 Date Filed: 12/20/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
December 20, 2010
No. 09-50222
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee
v.
ENRIQUE SANCHEZ-MONTES,
Defendant - Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:08-CR-2742-1
Before BARKSDALE, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
Enrique Sanchez-Montes appeals his within-guidelines sentence of 41
months’ imprisonment for illegal reentry following deportation, in violation of
8 U.S.C. § 1326. Calculating his Guidelines range at sentencing, the district
court applied a 16-level enhancement, pursuant to advisory Sentencing
Guideline § 2L1.2(b)(1)(A)(i), for a prior drug-trafficking offense. Sanchez
contends the Government failed to produce sufficient evidence establishing his
prior felony drug-trafficking conviction where the sentence imposed exceeded 13
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
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No. 09-50222
months. In that regard, Sanchez contends his conviction for “possession with
intent to deliver”, conceded during sentencing, did not establish he had a prior
conviction involving an “intent to distribute” for purposes of applying the 16-
level enhancement.
Because Sanchez did not object in district court to the 16-level
enhancement, the issue is reviewed only for plain error. See United States v.
Gonzalez-Terrazas, 529 F.3d 293, 296 (5th Cir. 2008). To establish plain error,
Sanchez must show a clear or obvious error affecting his substantial rights. E.g.,
Puckett v. United States, 129 S. Ct. 1423, 1429 (2009).
Guideline § 2L1.2(b)(1)(A)(i) provides for a 16-level increase if the
defendant was deported after a felony-conviction drug-trafficking offense where
the sentence imposed exceeded 13 months. A “drug-trafficking offense” includes
dispensing a controlled substance with intent to distribute, with “distribute”
defined as delivering a controlled substance, and “delivery” defined as the actual,
constructive, or attempted transfer of a controlled substance. 21 U.S.C. §
802(11), (8); U.S.S.G. § 2L1.2 cmt. n.1(B)(iv).
Sanchez incorrectly asserts there is insufficient evidence to support his
prior Iowa felony-conviction for possession of cocaine with intent to deliver,
maintaining the only reference to the conviction was by his attorney in district
court. To the contrary, the presentence investigation report (PSR) referred to
Sanchez’ 1996 Iowa felony-conviction and included, as an addendum, the
charging instrument for that offense. See Shepard v. United States, 544 U.S. 13,
16 (2005) (holding charging documents constitute reliable evidence of prior
guilty-plea convictions). Further, as noted, at sentencing, Sanchez made no
objections to the PSR, and conceded: he had a 1996 felony-conviction for
possession with intent to deliver a controlled substance; and the Government
possessed the judgment to support the conviction.
With regard to Sanchez’ contention his prior offense does not qualify as a
“drug-trafficking offense” for purposes of the enhancement, Sanchez is in error.
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No. 09-50222
See United States v. Ford, 509 F.3d 714, 715 (5th Cir. 2007) (holding a conviction
for “possession with an intent to deliver” a controlled substance qualified as
basis for sentencing enhancement as “controlled substance offense” under
Guidelines). His offense clearly falls within the definition of a “drug-trafficking
offense” under Guideline § 2L1.2. See 21 U.S.C. § 802(11), (8); U.S.S.G. § 2L1.2
cmt. n.1(B)(iv). Accordingly, Sanchez has shown no error, much less plain error,
with respect to the 16-level enhancement. See also United States v. Ramirez,
557 F.3d 200, 204 (5th Cir. 2009); United States v. Fambro, 526 F.3d 836, 849-50
(5th Cir. 2008).
AFFIRMED.
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