IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 13-40943

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

VALENTIN CORTES-TOLENTINO, also known as Valentino Cortez 

Tolentino, also known as Valentin Cortez Tolentino,

Defendant-Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 5:13-CR-353-1

Before STEWART, Chief Judge, and JOLLY and SOUTHWICK, Circuit 

Judges.

PER CURIAM:*

Valentin Cortes-Tolentino 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 2005 

* 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.

United States Court of Appeals

Fifth Circuit

FILED

August 13, 2014

Lyle W. Cayce

Clerk

 

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No. 13-40943

Virginia conviction for possession with intent to distribute cocaine was a felony 

drug trafficking offense for purposes of U.S.S.G. § 2L1.2(b)(1)(A)(i). Relying on 

the Supreme Court’s decision in Moncrieffe v. Holder, 133 S. Ct. 1678 (2013), 

as well as this court’s decision in United States v. Garza–Lopez, 410 F.3d 268 

(5th Cir. 2005), Cortes-Tolentino argues that the Virginia statute under which 

he was convicted, VA. CODE ANN. § 18.2-248, is broader than the drug 

trafficking offense definition set forth in the commentary to § 2L1.2 because 

under Virginia law, “distribution” of a controlled substance includes giving it 

away for no consideration. Because the state court documents did not narrow 

his conviction to a qualifying drug trafficking offense, he argues that the 

district court’s application of the § 2L1.2(b)(1)(A)(i) enhancement was a clear 

and obvious error.

As Cortes-Tolentino concedes, this court’s review is for plain error 

because he did not object to the § 2L1.2(b)(1)(A)(i) enhancement in the district 

court. See United States v. Henao-Melo, 591 F.3d 798, 801 (5th Cir. 2009). To 

show plain error, Cortes-Tolentino 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, this court has the 

discretion to correct the error but only if it seriously affects the fairness, 

integrity, or public reputation of judicial proceedings. See id.

Cortes-Tolentino acknowledges that in United States v. Rodriguez, 523 

F.3d 519, 523-24 (5th Cir. 2008), this court held that distribution of cocaine 

under § 18.2-248 is a drug trafficking offense under the Sentencing Guidelines. 

However, he contends that Rodriguez does not foreclose the issue he raises on 

appeal because this court did not address in Rodriguez the argument that 

“distribution” under the Virginia statute can encompass giving away a 

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No. 13-40943

controlled substance and that giving away a controlled substance falls outside 

of the definition of a drug trafficking offense under the Guidelines. 

After this court’s decision in Garza–Lopez, the United States Sentencing 

Commission amended § 2L1.2’s definition of a drug trafficking offense to 

include offers to sell a controlled substance. See § 2L1.2, comment. (n.1(B)(iv)); 

United States v. Marban–Calderon, 631 F.3d 210, 211-12 (5th Cir. 2011). This 

court has not conclusively answered the question whether a conviction for 

giving away or offering to give away a controlled substance constitutes a drug 

trafficking offense under the post-2008 version of § 2L1.2. Further, the 

Supreme Court’s decision in Moncrieffe addressed whether an alien’s Georgia 

conviction for possession with intent to distribute 1.3 grams of marijuana 

qualified as an aggravated felony for purposes of 8 U.S.C. § 1101(a)(43)(B), 

Moncrieffe, 133 S. Ct. at 1683-84, and this court has yet to address Moncrieffe’s 

effect, if any, on whether a conviction for sharing a small amount of a controlled 

substance for no remuneration qualifies as a drug trafficking offense under 

§ 2L1.2(b)(1)(A)(i). Because the issue is subject to reasonable debate and the 

error is not readily apparent, the district court's application of the 

§ 2L1.2(b)(1)(A)(i) enhancement, if erroneous, did not rise to the level of a clear 

or obvious error. See United States v. Ellis, 564 F.3d 370, 377-78 (5th Cir.

2009). Accordingly, Cortes-Tolentino cannot show plain error, and the district 

court's judgment is AFFIRMED.

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