IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 13-41244

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee

v.

JORGE CASTELLON-ARAGON, 

 Defendant - Appellant

Appeal from the United States District Court

for the Southern District of Texas

Before JOLLY and JONES, Circuit Judges, and AFRICK*, District Judge.

EDITH H. JONES, Circuit Judge:

Appellant Jorge Castellon-Aragon pled guilty to illegal reentry after 

having been previously removed from the United States, in violation of 

8 U.S.C. § 1326(a), (b)(2). The PSR recommended that the Appellant’s 2012 

California conviction for possession of a controlled substance for sale qualified 

as a felony drug trafficking offense for which the sentence imposed was 

13 months or less. Pursuant to U.S.S.G. § 2L1.2(b)(1)(B), the probation officer 

recommended a 12 level adjustment based upon that conviction. With a total 

offense level of 17 and a criminal history category of III, the advisory guidelines 

range of imprisonment was 30–37 months. Castellon-Aragon, represented by 

* District Judge of the Eastern District of Louisiana, sitting by designation.

United States Court of Appeals

Fifth Circuit

FILED

November 24, 2014

Lyle W. Cayce

Clerk

 

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the Federal Public Defender, filed no objection to the PSR. The district court 

sentenced him to 30 months’ imprisonment. 

 On appeal, for the first time, Appellant challenges as plain error the base 

offense level enhancement deriving from the classification of his prior 

conviction as a drug trafficking offense—and consequently an aggravated 

felony for purposes of § 1326(b)(2). We disagree that there was plain error.

 The PSR reflected that Castellon-Aragon’s prior conviction was for 

possession for sale of a controlled substance identified as methamphetamine. 

Cal. Health & Safety Code § 11378. Appellant also had at least three DUI 

offenses—although they were not all prosecuted—and related offenses of 

driving without a license and driving with a suspended license. He had been 

removed from the United States at least six times before. The FPD referred 

during sentencing to letters submitted on behalf of Appellant by his friends 

and family pleading for a below-guidelines sentence, but the FPD specifically 

said, “No,” when asked about any challenges to the PSR calculation of his 

sentence range.

 Notwithstanding his silence at sentencing, the Appellant raises two 

challenges to the impact of the California offense: (1) the state statute is not a 

an aggravated felony for sentencing purposes, and (2) the government failed to 

offer sufficient proof under the “modified categorical approach” to show that 

Appellant pled guilty to an offense involving methamphetamine. Our standard 

of review for newly raised issues is that of plain error, which requires the 

Appellant to show (a) error at sentencing, (b) that was “plain,” and (c) affected 

his substantial rights, such that (d) this court’s failure to exercise our 

discretion to correct the error would seriously affect the courts’ reputation for 

fairness. Puckett v. United States, 556 U.S. 129, 135, 129 S. Ct. 1423, 1429

(2009). 

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 The parties agree that § 11378, a broadly written proscription, does not 

qualify as an aggravated felony for federal sentencing purposes. See, e.g., 

United States v. Valdavinos-Torres, 704 F.3d 679 (9th Cir. 2012), cert. denied, 

134 S. Ct. 1873 (2014); United States v. Sanchez-Garcia, 642 F.3d 658, 661–62 

(8th Cir. 2011). A conviction for possession of methamphetamine for sale, 

however, clearly qualifies as a drug trafficking offense under the guidelines 

§ 2L1.2(b). United States v. Valle-Montalbo, 474 F.3d 1197, 1200–01 (9th Cir. 

2006) (affirming sentence after concluding that defendant’s conviction for 

methamphetamine was a drug trafficking offense under the Taylor approach, 

though erroneously referring to Taylor as a categorical analysis). According 

to the Supreme Court, the “modified categorical approach” of Taylor v United 

States, 495 U.S. 575, 110 S. Ct. 2143 (1990) allows the consideration of state 

court documents approved in Shepard v United States, 544 U.S. 13, 125 S. Ct. 

1254 (2005), as a means of parsing whether the defendant has been convicted 

of a state law offense falling within federal guidelines. Appellant contends that 

the state court records in this case are insufficient to prove that he pled guilty 

to an offense involving methamphetamine. The government disagrees.

 Resolution of this dispute turns on how authoritative and how factually 

similar is this court’s unpublished, non-precedential decision in United States

v. Lopez-Cano, 516 F.App’x 350 (5th Cir. 2013), which reversed a sentence 

enhancement based on the same California statute. In Lopez-Cano, this court 

reviewed an error that had been preserved in the trial court. This court held 

that certain California court documents—submitted in support of the 

necessary finding that the defendant pled guilty to a violation involving a 

federally controlled substance—were not Shepard-approved because they were 

prepared by the court and not by a judge. Id. at 354. Moreover, the docket 

sheet and case summary did not show what type of controlled substance the 

conviction involved. Id. Although the complaint charged Lopez-Cano with 

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possession of methamphetamine, it was not a Shepard-approved document 

because he ultimately pled to a subsequently issued information that failed to 

specify the controlled substance.

 Based upon Lopez-Cano, Castellon-Aragon contends that the district 

court here “plainly” erred by relying upon the supporting documents submitted 

by the probation officer regarding his conviction. For example, the abstract of 

judgment and preliminary hearing minutes are not Shepard-approved 

documents because they were not signed by a judge. The only document that 

refers to methamphetamine as the basis for his prosecution is the criminal 

complaint, but, he asserts, there is no evidence that he was convicted pursuant 

to that complaint. Accordingly, the government failed to satisfy its burden of 

proof to support the § 2L1.2 adjustment with adequate California court 

documents. 

 The Government points out several differences between this case and 

Lopez-Cano. Lopez-Cano, of course, is unpublished and therefore nonprecedential in this circuit; however, it may function as persuasive authority. 

United States v. Medina-Torres, 703 F.3d 770, 777 (5th Cir. 2012) (“[I]t is not 

always necessary that a rule of decision be announced in a prior published 

decision in order for this Court to find it persuasive in reaching a decision.”). 

More important, however, is that the state court records here are different from 

those submitted in Lopez-Cano. The criminal complaint against CastellonAragon alleged a violation of § 11378 explicitly based on methamphetamine. 

Under Shepard, a complaint may be a proper charging document for purposes 

of narrowing the scope of the conviction. Shepard, 544 U.S. at 26, 125 S. Ct. 

at 1263. Unlike in Lopez-Cano, there is no indication that the complaint was 

superseded by an information or indictment. To the contrary, there is a plea 

of nolo contendere and all the marks on the relevant forms indicate the 

defendant waived his rights and pled pursuant to an expedited “Early 

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Resolution” procedure. The Government contends persuasively that the 

charging document was the complaint alone, which sufficiently narrowed the 

scope of conviction to one within the relevant U.S.S.G. enhancement.

 Appellant urges us to reject this common-sense inference from the state 

files because the Government had the burden at sentencing to produce 

Shepard-compliant documents. Castellon-Aragon, however, never gave the 

Government or the probation officer reason to believe during the sentencing 

proceedings that he challenged their proof. The meaning and consequences of 

California records raise potential factual and legal questions. In Lopez-Cano, 

for instance, this court undertook a rather lengthy discussion of state 

procedures because the issues were properly preserved and raised on appeal. 

 Dealing with preserved error in Lopez-Cano leads to a considerably 

different posture of that case on appeal as opposed to the instant plain error 

review. First, this court has repeatedly stated that questions of fact are not 

reviewable for plain error. See, e.g., United States v. Chung, 261 F.3d 536, 539 

(5th Cir. 2001) (“[Q]uestions of fact capable of resolution by the district court 

can never constitute plain error.”). To the extent that interpreting the 

California procedural posture of Appellant’s prior conviction involves factual 

questions about the defendant’s involvement as reflected on the relevant 

documents, we cannot find plain error. Second, to the extent that the 

intricacies of California criminal procedures are involved—the Government 

states that an indictment or information are unnecessary if the defendant 

waives those rights and simply pleads to the complaint—orderly federal 

processes are being up-ended in asking this appellate court to investigate those 

procedures in the first instance. Had defense counsel presented his objections 

to the trial court, the inquiry here would be far different. Among the 

possibilities is that the probation office or the Government might have had the 

opportunity to produce documents to the satisfaction of defense counsel 

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No. 13-41244

verifying the methamphetamine conviction. At least, both parties would have 

researched and offered the courts their best interpretation of California 

criminal procedure. 

 As it is, Appellant’s argument boils down to the proposition that the 

district court “plainly erred” in failing to require the Government to prove a 

negative: that no superseding charging instrument was filed such that 

Castellon-Aragon might have pled guilty to an offense that didn’t specify 

methamphetamine and therefore did not constitute a sentencing guidelines 

“drug trafficking offense.” This is the only way that Appellant can claim the 

benefit of Lopez-Cano. Because, however, the state court documents before 

us reasonably indicate the absence of any such document, and because the 

Government cites California authority that offers support for its interpretation 

of the state proceedings, we find no “plain,” “clear or obvious” error committed 

by the trial court. We therefore do not reach the potential effect on CastellonAragon’s substantial rights or whether we should exercise our considerable 

discretion to “correct” the sentence.

 The sentence is AFFIRMED. 

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