United States v. Heriberto Orozco-Campos , 419 F. App'x 516 ( 2011 )

Case: 10-10377 Document: 00511421189 Page: 1 Date Filed: 03/23/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
March 23, 2011
No. 10-10377
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
HERIBERTO OROZCO-CAMPOS, also known as Rodolfo Galindo, also known
as Daniel Andrade,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 5:09-CR-82-1
Before JONES, Chief Judge, and SMITH and CLEMENT, Circuit Judges.
PER CURIAM:*
Heriberto Orozco-Campos appeals from the sentence imposed for his guilty
plea conviction for illegal reentry after deportation. He argues for the first time
on appeal that the district court erred by applying a16-level adjustment to his
sentence because his Montana conviction for conspiracy did not qualify as a drug
trafficking offense for purposes of U.S.S.G. § 2L1.2(b)(1)(A)(i). He asserts that
the Montana statute under which he was convicted encompasses two substances
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 10-10377 Document: 00511421189 Page: 2 Date Filed: 03/23/2011
No. 10-10377
that are not prohibited under the federal controlled substances act and that the
district court could not rely upon the information in the presentence report
(PSR) indicating that his Montana conviction involved marijuana. Because
Orozco-Campos did not object on this basis in district court, we review this issue
only for plain error. United States v. Henao-Melo, 591 F.3d 798, 801 (5th Cir.
2009).
Although the district court was not permitted to rely solely upon the PSR
to determine whether the prior conviction constituted a drug trafficking offense
under § 2L1.2, it may “use all facts admitted by the defendant in determining
whether the prior conviction qualifies as an enumerated offense under § 2L1.2.”
United States v. Martinez-Vega, 471 F.3d 559, 563 (5th Cir. 2006) (internal
quotation marks and citation omitted). Orozco-Campos’s explicit adoption of the
PSR was sufficient to support the § 2L1.2 adjustment for purposes of plain error
review. See United States v. Sanchez, 389 F. App’x 378, 380 (5th Cir. 2010);
Martinez-Vega, 471 F.3d at 563; cf. United States v. Velasquez-Torrez, 609 F.3d
743, 747-48 (5th Cir.) (holding that, because defendant and counsel specifically
affirmed that they had reviewed the PSR for accuracy and made no objections
to it, the district court did not commit reversible plain error by relying upon the
defendant's admission of his prior removal following a felony conviction, as
stated in the PSR), cert. denied, 131 S. Ct. 438 (2010); United States v. Ramirez,
557 F.3d 200, 204-05 (5th Cir. 2009) (same). He has therefore failed to show
error that was clear or obvious in this regard. See Puckett v. United States,
129 S. Ct. 1423, 1429 (2009).
The judgment of the district court is AFFIRMED.
2