United States v. Edwin Vasquez-Alvarado ( 2014 )

Case: 12-41348 Document: 00512523365 Page: 1 Date Filed: 02/05/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 12-41348 FILED
Summary Calendar
February 5, 2014
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
EDWIN ANTONIO VASQUEZ-ALVARADO,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:12-CR-478-1
Before REAVLEY, JONES, and PRADO, Circuit Judges.
PER CURIAM: *
Edwin Antonio Vasquez-Alvarado appeals the sentence imposed
following his guilty plea conviction for being found unlawfully in the United
States after deportation in violation of 8 U.S.C. § 1326. He contends that the
district court plainly erred when it enhanced his sentence based on a finding
that his prior New York convictions for criminal sale of a controlled substance
in the third degree qualified as drug trafficking offenses for purposes of
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 12-41348 Document: 00512523365 Page: 2 Date Filed: 02/05/2014
No. 12-41348
U.S.S.G. § 2L1.2(b)(1)(A)(i). Specifically, Vasquez-Alvarado argues that the
New York statute under which he was convicted is broader than the drug
trafficking offense definition set forth in the commentary to § 2L1.2 because it
criminalizes the sale of substances that are not listed as controlled substances
under federal law. Because the state court documents were insufficient to
narrow his convictions to qualifying drug trafficking offenses, he argues that
the district court’s application of the § 2L1.2(b)(1)(A)(i) enhancement was a
clear and obvious error.
Vasquez-Alvarado did not object to the § 2L1.2(b)(1)(A)(i) enhancement
on the specific grounds raised in the instant appeal. Our review therefore is
for plain error. See United States v. Villegas, 404 F.3d 355, 358 (5th Cir. 2005).
To show plain error, Vasquez-Alvarado 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 affects the fairness, integrity, or
public reputation of judicial proceedings. See id.
The state court documents provide that on August 2, 2000, Vasquez-
Alvarado was convicted of two counts of criminal sale of a controlled substance
in the third degree in violation of N.Y. PENAL LAW § 220.39. The Government
contends that at the time of Vasquez-Alvarado’s convictions, the 23 substances
identified in his opening brief were covered by the Controlled Substances Act
(CSA), 21 U.S.C. § 801, et seq. Vasquez-Alvarado concedes in his reply brief
that the Government is correct. He has therefore failed to demonstrate that
§ 220.39 is broader than the drug trafficking offense definition set forth in the
commentary to § 2L1.2 or that the district court committed a clear or obvious
error when it enhanced his sentence pursuant to § 2L1.2(b)(1)(A)(i). See
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Case: 12-41348 Document: 00512523365 Page: 3 Date Filed: 02/05/2014
No. 12-41348
Puckett, 556 U.S. at 135. Accordingly, the district court’s judgment is
AFFIRMED.
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