United States v. Saldana-Limon

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
January 23, 2009
No. 08-50594
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
DIANA SALDANA-LIMON
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 2:07-CR-755-ALL
Before REAVLEY, DAVIS, and ELROD, Circuit Judges.
PER CURIAM:*
Diana Saldana-Limon (Saldana) appeals the 57-month sentence imposed
by the district court following her guilty plea conviction for illegal reentry
following deportation. Saldana argues that the district court erred in calculating
the advisory guidelines range because it imposed a 16-level adjustment under
U.S.S.G. § 2L1.2(b)(1)(A)(i) based on her prior state conviction for possession of
a controlled substance with intent to deliver. Although she concedes that this
*
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should not be published and is not precedent except under the limited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.
No. 08-50594
issue is controlled by this court’s decision in United States v. Ford, 509 F.3d 714
(5th Cir. 2007), cert. denied, 129 S. Ct. 44 (2008), Saldana argues that that case
was wrongly decided. Because Ford supports the application of the adjustment
and this court is bound to apply its own precedent absent an intervening change
in the law, Saldana’s argument is without merit. See Ford, 509 F.3d at 717;
United States v. Treft, 447 F.3d 421, 425 (5th Cir. 2006).
Saldana has waived any argument regarding the evidence used to
establish her prior conviction by not arguing this issue in the body of her brief.
See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993). Even if she had
properly raised this issue, she could not establish plain error because the record
was supplemented with documentation that establishes that the prior offense
involved possession of a controlled substance with intent to deliver.
AFFIRMED.
2