United States v. Francisco Vega-Chaparro , 713 F. App'x 317 ( 2018 )

Case: 16-51176 Document: 00514357996 Page: 1 Date Filed: 02/22/2018
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 16-51176 FILED
Summary Calendar February 22, 2018
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
FRANCISCO JAVIER VEGA-CHAPARRO,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:16-CR-1018-1
Before REAVLEY, PRADO, and GRAVES, Circuit Judges.
PER CURIAM: *
Francisco Javier Vega-Chaparro appeals the sentence imposed following
his guilty plea conviction for illegal reentry. He appeals the district court’s
application of a 16-level enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(i) (2015)
to his sentence after finding that his prior conviction under Colorado Revised
Statutes § 18-18-405(1)(a) (2003) was a “drug trafficking offense” under the
Sentencing Guidelines. In particular, Vega-Chaparro contends that § 18-18-
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 16-51176 Document: 00514357996 Page: 2 Date Filed: 02/22/2018
No. 16-51176
405(1)(a) is not divisible under Mathis v. United States, 136 S. Ct. 2243 (2016),
because it is overbroad and enumerates one offense with alternate methods of
commission rather than different offenses.
As Vega-Chaparro concedes, review is limited to plain error because he
did not object to the enhancement in the district court. United States v.
Mondragon-Santiago, 564 F.3d 357, 361 (5th Cir. 2009). Under this standard,
Vega-Chaparro must show a clear or obvious error that affected 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 will do so only
if it seriously affects the fairness, integrity, or public reputation of the
proceedings. Id.
The district court did not plainly err in imposing the § 2L1.2 sentencing
enhancement. Recently, in United States v. Gomez, __ F. App’x __, 2017 WL
3888298, **3-4 (5th Cir. Sept. 5, 2017), we assumed without deciding that the
district court erred by not finding that the Colorado statute was indivisible.
After noting that there was no controlling authority on point and determining
that an examination of Colorado law led to conflicting interpretations of the
statute, we rejected on plain error review the same argument now raised by
Vega-Chaparro. To rise to the level of plain error, a “legal error must be clear
or obvious, rather than subject to reasonable debate.” United States v. Ellis,
564 F.3d 370, 377-78 (5th Cir. 2009). Because Colorado law on the divisibility
of § 18-18-405 remains unclear, Vega-Chaparro has not shown that the district
court plainly erred in imposing the § 2L1.2 sentencing enhancement. See id.
at 377-78; see also United States v. Trejo, 610 F.3d 308, 319 (5th Cir. 2010)
(holding that a claim that is “novel” and “not entirely clear under the existing
case authority” is “doom[ed] . . . for plain error.”).
AFFIRMED.
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