United States v. Jorge Lopez-Merino , 608 F. App'x 296 ( 2015 )

Case: 14-40807 Document: 00513103451 Page: 1 Date Filed: 07/02/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 14-40807 FILED
Summary Calendar July 2, 2015
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
JORGE LOPEZ-MERINO,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:14-CR-287
Before REAVLEY, DENNIS, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
Jorge Lopez-Merino appeals the 24-month prison term imposed following
his guilty plea to being found in the United States after a previous deportation.
He contends that the district court erroneously applied the 16-level
enhancement of U.S.S.G. § 2L1.2(b)(1)(A)(i) based on his 2001 New Jersey
conviction for possession of cocaine with intent to distribute near school
property. Relying on the Supreme Court’s decision in Moncrieffe v. Holder, 133
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
Case: 14-40807 Document: 00513103451 Page: 2 Date Filed: 07/02/2015
No. 14-40807
S. Ct. 1678 (2013), as well as on this court’s decisions, Lopez-Merino argues
that the New Jersey statutory provisions under which he was convicted are
broader than the definition of “drug trafficking offense” set forth in the
commentary to Section 2L1.2 because they criminalize the distribution of
cocaine without remuneration. His statute of conviction criminalizes
“possess[ing] . . . with intent to . . . distribute . . . a controlled dangerous
substance . . . .” N.J. STAT. ANN. § 2C:35-5a.(1) (West 2000). There is some
authority that the term “distribute” in the New Jersey statute simply means
“to deliver” and “does not require a commercial sale.” See State v. Heitzman,
508 A.2d 1161, 1163 (N.J. Super. Ct. App. Div. 1986).
Because Lopez-Merino did not object to the enhancement in the district
court, this court’s review is for plain error. See United States v. Moreno-
Florean, 542 F.3d 445, 448 (5th Cir. 2008). To prevail, he must show a forfeited
error that is clear or obvious and that affects his substantial rights. See Puckett
v. United States, 556 U.S. 129, 135 (2009). If he makes such a showing, we
have the discretion to correct the error, but only if it “seriously affect[s] the
fairness, integrity or public reputation of judicial proceedings.” See id. (citation
and quotation marks omitted).
We recently determined that using the Section 2L1.2(b)(1)(A)(i)
enhancement for a prior drug trafficking conviction is warranted even if, as
here, a conviction for the prior offense required proof of remuneration or
commercial activity. See United States v. Martinez-Lugo, 782 F.3d 198, 204-05
(5th Cir. 2015). Consequently, Lopez-Merino fails to establish that the district
court clearly or obviously erred in enhancing his offense level.
AFFIRMED.
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