IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-41007

UNITED STATES OF AMERICA 

Plaintiff - Appellee

v.

JUAN CARLOS FUENTES-OYERVIDES

Defendant - Appellant

Appeal from the United States District Court

for the Southern District of Texas

Before HIGGINBOTHAM, STEWART, and SOUTHWICK, Circuit Judges.

PER CURIAM:

Juan Carlos Fuentes-Oyervides pled guilty to an attempt to enter the

United States illegally. He was sentenced to 37 months in prison and three

years of supervised release. Fuentes-Oyervides appeals his sentence, arguing

that it was improperly enhanced. We affirm.

This conviction was under 8 U.S.C. § 1326. Under the Sentencing

Guidelines, the offense level for unlawfully entering the United States is

increased by twelve levels if the defendant was previously deported after being

convicted of a felony drug trafficking offense that resulted in a sentence of

thirteen months or less in prison. U.S.S.G. § 2L1.2(b)(1)(B). The same Guideline

defines “drug trafficking offense” as “an offense under federal, state, or local law

United States Court of Appeals

Fifth Circuit

F I L E D

August 13, 2008

Charles R. Fulbruge III

Clerk
No. 07-41007

2

that prohibits the manufacture, import, export, distribution, or dispensing of, or

offer to sell a controlled substance . . . or the possession of a controlled substance

. . . with intentto manufacture, import, export, distribute, or dispense.” U.S.S.G.

§ 2L1.2, cmt. n.1(B)(iv). 

The presentence report calculated a twelve-level increase for FuentesOyervides based upon his 2005 guilty plea to an Ohio drug trafficking offense.

The Ohio statute provides that no person shall knowingly “[p]repare for

shipment, ship, transport, deliver, prepare for distribution, or distribute a

controlled substance, when the offender knows or has reasonable cause to believe

that the controlled substance is intended for sale or resale by the offender or

another person.” Ohio Rev. Code Ann. § 2925.03(A)(2). The district court

rejected Fuentes-Oyervides’s objections to the PSR calculation.

On appeal, Fuentes-Oyervides renews the argument he made below that

the twelve-level increase was improper on the basis that the state statute

criminalizes behavior that does not fall within the Guidelines’ definition of a

“drug trafficking offense.” Specifically, he argues that at least some of the

actions prohibited by the state statute fall outside of the Guidelines definition

of “drug trafficking offense.” Compare Ohio Rev. Code Ann. § 2925.03(A)(2)

(including preparing drugs for shipment and transporting drugs) with U.S.S.G.

§ 2L1.2(b)(1)(B) (prohibiting “manufacture,” “import,” “export,” “distribution,”

“dispensing of” or “offering to sell”). Fuentes-Oyervides further contends that a

state conviction would not meet the alternative possession-with-intent clause of

the Guideline because the state statute lacks a sufficient mens rea requirement.

Specifically, the state statute only requires 1) knowledge or negligence, 2) as to

another’s intent. In contrast, the Guideline requires that the offender actually

intend to manufacture or distribute. Compare Ohio Rev. Code Ann.

§ 2925.03(A)(2) (“when the offender knows or has reasonable cause to believe

that the controlled substance is intended for sale or resale by the offender or
No. 07-41007

1 This Circuit has noted that the definitions of a “drug trafficking offense” under

U.S.S.G. § 2L1.2(b)(1)(B) and a “controlled substance offense” under U.S.S.G. § 4B1.2(b) are

“almost identical.” United States v. Ford, 509 F.3d 714, 717 n.2 (5th Cir. 2007). Compare

U.S.S.G. § 2L1.2, cmt. n.1(B)(iv) with U.S.S.G. § 4B1.2(b). Accordingly, we have relied on cases

interpreting a drug trafficking offense to determine whether a conviction was a controlled

substance offense, and vice versa. See United States v. Price, 516 F.3d 285, 287-289 (5th Cir.

2008); Ford, 509 F.3d at 717.

3

another person”) with U.S.S.G. § 2L1.2(b)(1)(B) (prohibiting “possession of a

controlled substance . . . with intent to manufacture, import, export, distribute,

or dispense”). 

We review de novo a determination that a prior state conviction

constitutes a drug trafficking offense. United States v. Gutierrez-Ramirez, 405

F.3d 352, 355-56 (5th Cir. 2005). When we analyze whether a “drug trafficking

offense” was committed, we may look beyond the elements of the offense and

may consider the statutory definition of the predicate offense, the charging

papers, and any jury instructions. See United States v. Garza-Lopez, 410 F.3d

268, 273 (5th Cir. 2005). 

Other Circuits have considered the nearly identical question whether a

conviction under this Ohio statute qualifies for a “controlled substance offense”

adjustment under the Guidelines.1 Our sister Circuits have uniformly concluded

that the state conviction qualifies. See United States v. Miles, 266 F. App’x 534

(9th Cir. 2008) (unpublished); United States v. Karam, 496 F.3d 1157 (10th Cir.

2007); United States v. Wright, 43 F. App’x 848 (6th Cir. 2002) (unpublished)

(cited approvingly by United States v. Montanez, 442 F.3d 485, 490 (6th Cir.

2006), the latter case involving a different subsection of the Ohio statute). 

In one ofthese precedents from another Circuit, the defendant argued that

some of the actions criminalized by the Ohio statute – such as preparing drugs

for shipment, and shipping and transporting drugs – involve mere possession;

consequently, the statute could be violated simply by possession of a controlled

substance with reasonable cause to believe the drugs are intended for sale.
No. 07-41007

4

Karam, 496 F.3d at 1167. Like Fuentes-Oyervides does here, Karam argued

that a “reasonable cause to believe” mens rea standard was insufficientto satisfy

the definition of a controlled substance offenses, which requires possession with

intent to distribute. Id. Yet the Karam court rejected the contention that it had

to evaluate the question under the possession-with-intent prong of the

Guideline. Instead, it concluded that each of the acts prohibited by the Ohio

statute “involves the actual distribution of a controlled substance rather than

mere possession,” making all violations of the Ohio statute qualify under the

first part of the Guideline as “distribution” of a controlled substance. Id. The

court explained that because a violation of the Ohio statute requires that an

offender at a minimum have reason to believe the drugs are intended for sale by

someone, possession would never be sufficient for conviction:

If an individual has knowledge or reasonable cause to believe drugs

are intended for sale by another, the preparation for shipment,

shipment, or transport of those drugs cannot simply involve the

possessory act of one person moving his own drugs, as Karam

asserts. Rather, each of these acts is an integral part of the

distribution process and is therefore an act of distribution in and of

itself. Simply because the Ohio statute prohibits each of the various

phases of the distribution process does not make any one of these

intervening acts any less an act of distribution than the final step

in the process.

Id. at 1168. 

Fuentes-Oyervides cites two ofthis Circuit’s precedents as alleged support

for the proposition that transportation and other activities in a state statute

cannot be classified as drug trafficking offenses because transportation is not a

drug trafficking offense. One of the cited precedents concerned whether a

defendant’s California state conviction qualified as a drug trafficking offense

under the Guidelines. Garza-Lopez, 410 F.3d 268. We found that the conviction

did not so qualify because the statute criminalized, among other things, the

transportation of a controlled substance for personal use. Id. at 274-75. In
No. 07-41007

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contrast, the Ohio statute here does not criminalize mere personal use

possession; it requires a level of understanding that the drugs are for sale or

resale. 

In the other precedent on which Fuentes-Oyervides relies, the state

statute punished mere possession or transportation withoutintentto distribute.

United States v. Lopez-Salas, 513 F.3d 174 (5th Cir. 2008). We concluded that

a state’s presumption of intent to distribute – based upon the statute’s

requirement that a large amount of drugs be transported – was not sufficient

evidence of criminal intent to distribute for purposes of the Guidelines’ “drug

trafficking offense” adjustment. Id. at 180. The state statute at issue here

explicitly includes a mens rea requirement concerning distribution. 

Accordingly, we agree with the Tenth Circuit’s understanding that an

individual who prepares for shipment, ships, transports, delivers, prepares for

distribution, or distributes a controlled substance while he knows or should

know that the substance is intended for sale, commits an act of distribution

under the Guidelines. The district court did not err by incorporating a twelvelevel “drug trafficking offense” enhancement to Fuentes-Oyervides’s sentence.

AFFIRMED.