United States v. Ernesto Madrigal-Solorio ( 2016 )

Case: 15-40796 Document: 00513379486 Page: 1 Date Filed: 02/12/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 15-40796
Summary Calendar
United States Court of Appeals
Fifth Circuit
FILED
February 12, 2016
UNITED STATES OF AMERICA,
Lyle W. Cayce
Clerk
Plaintiff-Appellee
v.
ERNESTO MADRIGAL-SOLORIO,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:15-CR-30-1
Before SMITH, BENAVIDES, and HAYNES, Circuit Judges.
PER CURIAM: *
Ernesto Madrigal-Solorio (Madrigal) pleaded guilty to being found in the
United States after previous deportation following an aggravated felony
conviction. In this appeal, Madrigal contends that the district court reversibly
erred by imposing a 16-level “drug trafficking offense” enhancement under
U.S.S.G. § 2L1.2(b)(1)(A)(i) based on his 2003 conviction for possession of a
controlled substance for sale in violation of California Health and Safety Code
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 15-40796 Document: 00513379486 Page: 2 Date Filed: 02/12/2016
No. 15-40796
§ 11351 and his 2007 conviction for use of a communication facility to facilitate
a felony drug offense in violation of 21 U.S.C. § 843(b).
Madrigal did not object to the § 2L1.2(b)(1)(A)(i) enhancement in the
district court, and thus our review of his arguments are for plain error. See
United States v. Henao-Melo, 591 F.3d 798, 801 (5th Cir. 2009). To be plain,
an “‘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) (quoting Puckett v.
United States, 556 U.S. 129, 135 (2009)).
Madrigal challenges the district court’s characterization of his § 843(b)
conviction as a drug trafficking offense on the ground that, under Descamps v.
United States, 133 S. Ct. 2276 (2013), § 843(b) is an indivisible statute to which
the modified categorical approach of Shepard v. United States, 544 U.S. 13, 16
(2005), does not apply. Because the statute may be violated in ways that do
not constitute a generic “drug trafficking offense,” he argues, a prior conviction
under § 843(b) may never qualify as a drug trafficking offense for purposes of
§ 2L1.2(b)(1)(A)(i).
Madrigal’s argument that his § 843(b) conviction is not a drug trafficking
offense relies only on an extension of the Supreme Court’s reasoning in
Descamps. Because it asserts a novel legal theory, the district court did not
commit a clear or obvious error in failing to recognize it. See United States v.
Evans, 587 F.3d 667, 671 (5th Cir. 2009) (concluding that any error was not
plain where argument was novel and not supported by circuit precedent).
Since by its terms § 2L1.2(b)(1)(A)(i) need only be supported by a single drug
trafficking conviction, Madrigal’s challenge to the district court’s reliance on
his § 11351 conviction as an additional basis for the sentence enhancement
need not be considered. The judgment is AFFIRMED.
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