United States v. Garcia-Balderas , 326 F. App'x 745 ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
May 1, 2009
No. 08-40433
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
MARIO ALBERTO GARCIA-BALDERAS
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:07-CR-1227-1
Before WIENER, STEWART, and CLEMENT, Circuit Judges.
PER CURIAM:*
Defendant-Appellant Mario Alberto Garcia-Balderas appeals his 77-month
sentence of imprisonment following his guilty-plea conviction for illegal reentry
following deportation. Garcia-Balderas contends that the district court erred in
calculating the advisory guidelines sentencing range when the district court
imposed a 16-level adjustment under U.S.S.G. § 2L1.2(b)(1)(A), based on a prior
state conviction. The district court based the adjustment on Garcia-Balderas’s
*
Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
No. 08-40433
Texas state conviction for delivery of marijuana in amount of more than 50
pounds but less than 200 pounds, or a Texas state conviction for aggravated
assault.
Garcia-Balderas has failed to establish plain error because the evidence
with which the government supplemented the record on appeal demonstrates
that Garcia-Balderas was convicted of delivery by actual transfer of marijuana,
an offense that qualifies as a drug trafficking offense under § 2L1.2(b)(1)(A). See
United States v. Garcia-Arellano, 522 F.3d 477, 481 (5th Cir.), cert. denied, 129
S. Ct. 353 (2008); United States v. Gonzales, 484 F.3d 712, 714-15 (5th Cir.), cert.
denied, 127 S. Ct. 3031 (2007). As Garcia-Balderas failed to demonstrate plain
error in the application of the enhancement on the basis of the drug offense, we
do not consider the other possible basis for the enhancement, viz., the
aggravated assault. See United States v. Jackson, 453 F.3d 302, 308 n.11 (5th
Cir. 2006).
AFFIRMED.
2