United States v. Ayala-Vasquez

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
September 11, 2008
No. 07-40278
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
MARCO ANTONIO AYALA-VASQUEZ,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
No. 5:06-CR-1379-ALL
Before SMITH, STEWART, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Marco Ayala-Vasquez appeals his sentence following his guilty plea convic-
tion of illegal reentry after deportation in violation of 8 U.S.C. § 1326. At sen-
tencing, the district court made a specific finding that Ayala-Vasquez’s 1994 Cal-
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 07-40278
ifornia conviction of possessing marihuana for the purpose of a sale was a drug
trafficking offense for purposes of a 16-level enhancement under U.S.S.G.
§ 2L1.2(b)(1)(A)(I).
For the first time on appeal, Ayala-Vasquez argues that the district court
erred in imposing the 16-level enhancement based on the California conviction.
Because Ayala-Vasquez did not raise this issue in the district court, review is for
plain error. See United States v. Mares, 402 F.3d 511, 520 (5th Cir. 2005).
It is undisputed that Ayala-Vasquez was convicted under CAL. HEALTH
& SAFETY CODE § 11359, which states, “Every person who possesses for sale any
marijuana, except as otherwise provided by law, shall be punished by imprison-
ment in the state prison.” In United States v. Palacios-Quinonez, 431 F.3d 471,
473-76 (5th Cir. 2005), we held that an offense under CAL. HEALTH & SAFETY
CODE § 11351 constituted a drug trafficking offense. Section 11351 provides,
“Except as otherwise provided in this division, every person who possesses for
sale or purchases for purposes of sale” certain controlled substances shall be
punished by imprisonment. In Palacios-Quinonez, it was conceded that posses-
sion for sale was a drug trafficking offense. Palacios-Quinonez, 431 F.3d at 474.
Our analysis there also equated “purchase for sale” with “possession with intent
to distribute.” Id. at 474-76. On appeal, Ayala-Vasquez has not shown that the
district court plainly erred in finding that his prior conviction was a drug traf-
ficking offense and in sentencing him accordingly.
In light of Apprendi v. New Jersey, 530 U.S. 466 (2000), Ayala-Vasquez
challenges the constitutionality of § 1326(b)’s treatment of prior felony and ag-
gravated felony convictions as sentencing factors rather than elements of the
offense that must be found by a jury. That argument is foreclosed by Almendar-
ez-Torres v. United States, 523 U.S. 224, 235 (1998). United States v. Pineda-Ar-
rellano, 492 F.3d 624, 625 (5th Cir. 2007), cert. denied, 128 S. Ct. 872 (2008).
AFFIRMED.