* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and col lateral estoppel. This court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### July 7, 2005 

### PATRICK FISHER Clerk 

## F I L E D United States Court of Appeals Tenth Circuit 

### July 7, 2005 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. SERGIO MILLAN-TORRES, also known as Jose Luis Zapata, also known as Hector Rodriguez-Zapata, Defendant - Appellant. No. 04-2208 (D.C. No. CR-03-1485) (D.N.M.)

ORDER AND JUDGMENT *

Before KELLY , BALDOCK , and HARTZ , Circuit Judges.

Defendant-Appellant Sergio Millan-Torres, a citizenof Mexico, pleaded guilty to illegal reentry following removal for com mission of an aggravated felony. At sentencing, due to a prior felony convi ction, his offense level and criminal history category were enhanced under U.S.S .G. §§ 2L1.2 and 4A1.1. On appeal, Mr. Millan-Torres argues that (1) the sente nce enhancements were- 2 -

improper under the Guidelines because the state cou rt that rendered his prior conviction lacked jurisdiction and the information properly before the district court failed to establish a prior drug-trafficking offense, and (2) his sentence violates United States v. Booker , U.S. ; 125 S. Ct. 738 (2005). Exercising jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), we affirm.

Background In 1993, Mr. Millan-Torres was convicted of a felony drug offense in California state court after selling $20 worth of c ocaine to an undercover officer. II R. at 7, ¶ 24. During these proceedings, Mr. Mi llan-Torres told California officials that his birthdate was February 1, 1974, making him 19 years old at the time. Id. at 8, ¶ 24. He was sentenced by the California ad ult court to three years imprisonment. While serving his sentence, Mr. Mill an-Torres was paroled and removed to his native Mexico. II R. at 4, ¶ 12. In 2003, Mr. Millan-Torres was apprehended near Col umbus, New Mexico. Id. at 3, ¶ 4. He was subsequently indicted for illeg al reentry following conviction of an aggravated felony, in violation of 8 U.S.C. §§ 1326(a)(1) and (2), (b)(2), I R. at Doc. 9, to which he pleaded gu ilty. II R. at 3, ¶ 1. The Presentence Report (“PSR”) indicated a base offense level of eight, but recommended a 16-level enhancement under U.S.S.G. § 2L1.2 for a prior felony- 3 -

drug-trafficking conviction. Id. at 4, ¶ 12. The PSR also recommended that three points be added to Mr. Millan-Torres’s criminal his tory calculation based on the prior California conviction as the sentence exceede d 13 months, id. at 7-8, ¶¶ 24 & 25, and that two points be added because Mr. Mill an-Torres was still on parole for the California conviction when he reentered the United States illegally. Id. at PSR Addendum (Apr. 14, 2004). Mr. Millan-Torres objected to the PSR asserting he had given the wrong birthdate during the prior California proceedings and that in fact he was a juvenile at the time. Id. at PSR Addendum (May 18, 2004). Based on this ass erted status, he argued that the California conviction was invali d and violated his due process rights because he was sentenced by a court lacking jurisdiction over him. He also filed a Motion for Downward Departure arguing the P SR recommendation overrepresented the seriousness of his criminal history . I R. at Doc. 32; II R. at PSR Second Addendum (June 9, 2004). In support of his motion, Mr. Millan-Torres again argued that he was a juvenile at the time of his prior offense, and he also pointed out that he had not been arrested since the ten-year-old California conviction and that at the time of his arrest he on ly had 29 days of parole remaining. In response, the Government agreed the parole violation was a minor offense and recommended that his criminal history c ategory be reduced one level. II R. at PSR Second Addendum.- 4 -

The district court denied Mr. Millan-Torres’s Motio n for a Downward Departure finding that Custis v. United States , 511 U.S. 485 (1994), precluded it from considering a collateral attack on the prior c onviction for reasons other than a complete denial of counsel. III R. at 10. The c ourt then adopted the PSR’s factual findings and guideline applications, reduce d Mr. Millan-Torres’s criminal history category one level as recommended, and sent enced him to 41 months imprisonment, the bottom of the applicable guidelin e range. Id. at 16-18. Mr. Millan-Torres filed a timely notice of appeal. I R . at Doc. 44.

Discussion A. Sentence Enhancements Faced with a sentencing challenge, we review the di strict court’s factual findings for clear error and the court’s interpretation of the Sentencing Guidelines de novo. United States v. Simpson , 94 F.3d 1373, 1380 (10th Cir. 1996). However, arguments that are raised for the first ti me on appeal are reviewed for plain error. Fed. R. Crim. P. 52(b); United States v. Ruiz-Gea , 340 F.3d 1181, 1185 (10th Cir. 2003). Plain error exists when the re is (1) error, (2) that is plain, (3) and effects substantial rights, and (4) “seriou sly affect[s] the fairness, integrity, or public reputation of judicial proceed ings.” Ruiz-Gea , 340 F.3d at 1185 (quotations and citation omitted).- 5 -

1. Can Mr. Millan-Torres collaterally attack at sen tencing the state conviction used to enhance his sentence? Section 2L1.2(b) of the Sentencing Guidelines provi des for a sixteen-level enhancement for prior drug-trafficking convictions where the sentence exceeds thirteen months. Likewise, § 4A1.1 provides for a three-point criminal history increase for every “prior sentence of imprisonment exceeding one year and one month.” U.S.S.G. § 4A1.1(a). Mr. Millan-Torres’s sentence was enhanced under both of these provisions based on his prior California drug conviction. On appeal, he again asserts that his prior conviction was not properly considered at sentencing as he was a juvenile at the time and the adult court lacked jurisdiction over him. In Custis , the Supreme Court held that a prior conviction us ed to enhance a federal sentence under the Armed Career Criminal Ac t (“ACCA”) cannot be collaterally attacked at the time of sentencing, ex cept when the attack is based on a complete denial of counsel. 511 U.S. at 487. We have since applied this holding to enhancements made under the Sentencing G uidelines. Specifically, we have held that collateral attacks at the time of se ntencing, for reasons other than the complete denial of counsel, are not properly co nsidered when they relate to enhancements made under the career offender provisi ons in U.S.S.G. § 4B1.1, United States v. Garcia , 42 F.3d 573, 581 (10th Cir. 1994), or the crimina l history calculation in U.S.S.G. § 4A1.1. United States v. Simpson , 94 F.3d 1373, 1381-- 6 -

82 (10th Cir. 1996). In both Garciaand Simpson , we considered the specific guideline provision at issue and its accompanying commentary and conclu ded that the Sentencing Guidelines only allow for collateral attacks “‘othe rwise recognized in law.’” Simpson , 94 F.3d at 1381 (quoting U.S.S.G. § 4A1.2, comment. (n.6) (Nov. 1993)); Garcia , 42 F.3d at 580 (citation omitted). That is, the Guidelines themselves do not provide an independent basis for collaterally attacking a prior conviction. Thus, only those collateral attacks re cognized by the Constitution (the Custis exception) or some other provision of law are prop erly considered. Garcia , 42 F.3d at 580. We see no reason to reach a diff erent conclusion in this

case. The enhancement under § 4A1.1 (criminal history pro vision) is directly governed by our holding in Simpson . 94 F.3d at 1381-82. Regarding the § 2L1.2 offense-level enhancement, as with the ACCA, this g uideline provision speaks solely in terms of a prior “conviction,” U.S.S.G. § 2L1.2(b)(1) (If the defendant previously was deported . . . after– a convictionfor a felony . . .”) (emphasis added); see also Ruiz-Gea , 340 F.3d at 1188 (“the provision speaks of deport ation ‘after . . . a conviction ’”); cf. Custis , 511 U.S. at 490-91 n.1 (“The [ACCA] focuses on the factof the conviction . . .”), which is an undefined t erm. And, as we held in United States v. Cisneros-Cabrera , 110 F.3d 746 (10th Cir. 1997), the- 7 -

only relevant fact for triggering an enhancement un der this provision is that the defendant was removed after being convictedfor one of the listed felonies. Id. at 748. Whereas the criminal history provisions furth er refine which prior convictions are properly considered, specifically e xcluding those that are previously invalidated or vacated, U.S.S.G. § 4A1.2 , comment. (n.6) (1993), §2L1.2 has no such limitation. This distinction ev idences that under § 2L1.2, the validity, or fact, of the prior conviction is deter mined at the time of the defendant’s removal, but for purposes of calculatin g criminal history, the validity of the prior conviction is determined at the time t he enhancement is being employed. Id. Given this construction, we find it implausible that Congress intended § 2L1.2 to provide for collateral attacks at sentencing. Indeed, if anything, the lack of such Congressional intent is clearer here than in the other Guideline provisions we have previously addressed. Mr. Millan-Torres suggests § 2L1.2 does contemplate collateral review in that the application notes specify that the sentenc ing court cannot consider “a conviction for an offense committed before the defe ndant was eighteen years of age unless such conviction is classified as an adul t conviction.” U.S.S.G. § 2L1.2, comment. (n.1(A)(iv)) (2003). We disagree. This same limitation exists in § 4A1.1, see U.S.S.G. § 4A1.1, comment. (n.1) (1987) (“A senten ce imposed for an offense committed prior to the defendant’s eight eenth birthday is counted1 The Seventh Circuit, in United States v. Kramer , 225 F.3d 847 (7th Cir.

2000), did allow a collateral attack on a prior state judgment based on lack of personal jurisdiction. At issue in Kramerwas the Child Support Recovery Act (“CSRA”), which established federal criminal liabil ity for parents who willfully fail to pay child support for children living out o f state. 18 U.S.C. § 228(a). Mr. Kramer argued that his conviction under the CSRA wa s invalid because the underlying state child-support order was a default judgment entered by a court - 8 - under this item only if it resulted from an adult c onviction.”), and yet we specifically held that provision does not create a right to collateral review at sentencing. Simpson , 94 F.3d at 1381-82. Simply because the facts of this case directly implicate the juvenile conviction limitati on is insufficient to undermine our prior decision. Thus, the Supreme Court’s holding in Custis is equally applicable to sentences enhanced under the Sentencing Guidelines as the ACCA. Garcia , 42 F.3d at 581. As Mr. Millan-Torres’s prior convicti on is “classified as an adult conviction” under California law, the district court properly considered it in enhancing his sentence under the Guidelines. Recognizing that our prior decisions do not supporthis position, Mr. Millan-Torres attempts to focus our attention on th e Supreme Court’s language in Custis categorizing the complete denial of counsel as a “ jurisdictional defect.” Custis , 511 U.S. at 496 (emphasis added). In so doing, h e suggests this language establishes a broader exception for all collateral attacks based on jurisdictional failings. No federal court has yet adopted Mr. Mil lan-Torres’ view. 1 Evenlacking personal jurisdiction over him. Pointing t o Custis , the government argued

Mr. Kramer’s collateral attack was not appropriate. However, the Seventh Circuit concluded that in deciding whether a collateral att ack is permissible under Custis it must “focus on the particular statutory scheme at issue and decide whether Congress expected courts to evaluate the validity o f the underlying judgment.” Id. at 853. And based on the circumstances before it, the court concluded that “there is no indication that . . . Congress ever in tended to abrogate the traditional rule that a default judgment procured without perso nal jurisdiction is a nullity.” Id. at 857. Thus, the Seventh Circuit based its decis ion on the statutory analysis suggested in Custis , and not the decision’s “jurisdictional defect” la nguage, as is being requested of us in this case.

- 9 - assuming that Custis intimates a general jurisdictional defect exceptio n, Mr. Millan-Torres would still not prevail. This is so because, even if he was a juvenile at the time of his prior conviction, underCalifornia law the adult court did not lack subject matter jurisdiction over him. See In re Harris , 855 P.2d 391, 404 (Cal. 1993). While it is true that California juvenile courts generally have jurisdiction over juvenile offenders, see Cal. Welf. & Inst. Code § 602, because the adult and juvenile courts are considered separate divisions within the county superior court, when the adult court unknowingly se ntences a juvenile its actions simply “constitute[] an excess of jurisdiction, not a lack of fundamental jurisdiction.” In re Harris , 855 P.2d at 404. As such, this is simply not a c ase where the alleged error in the underlying convictio n rises to the same level of “jurisdictional defect” as that contemplated in Cus tis

. 2. Was Mr. Millan-Torres’s sentence properly enhanc ed for a prior “drugtrafficking offense”?- 10 -

Next, Mr. Millan-Torres argues his enhancement un der § 2L1.2(b)(1)(A)(I) was in error because the California statute he was convicted under does not establish that he was convicted of a drug-trafficki ng offense as defined in § 2L1.2 under the categorical approach adopted in Taylor v. United States , 495 U.S. 575 (1990). As Mr. Millan-Torres concedes, this argume nt is raised for the first time on appeal, and thus we review for plain error. Fed . R. Crim. P. 52(b); Ruiz-Gea , 340 F.3d at 1185. The TaylorCourt held that in deciding whether a prior convic tion constitutes a “crime of violence” under the Armed C areer Criminal Act (“ACCA”), 18 U.S.C. § 924(e), the trial court can o nly consider “the fact of conviction and the statutory definition of the prio r offense.” 495 U.S. at 602. This has been termed a “categorical approach.” Uni ted States v. MartinezCandejas , 347 F.3d 853, 858 (10th Cir. 2003). In Taylor , the Court applied this approach to convictions resulting from a verdict, and recently the Court extended this holding to convictions resulting from a plea a s well. Shepard v. United
States , __ U.S. __, 125 S. Ct. 1254 (2005). We have appl ied this categorical approach in deciding whether a prior conviction is a “crime of violence” under U.S.S.G. § 2L1.2(b)(1)(A)(ii). See United States v. Frias-Trujillo , 9 F.3d 875, 877 (10th Cir. 1993). However, as our opinion in M artinez-Candejas , makes clear, the categorical approach does not apply to a ll of the predicate felony2 In Shepard , the Court reiterated that Tayloris a decision of statutory

interpretation. 125 S. Ct. at 1261. Further, the Court noted that Congress’s failure to modify the statute in the 15 years since Taylorwas decided indicates the decision is in accord with Congressional intent. I d. - 11 - offenses listed in § 2L1.2. In Martinez-Candejas , we recognized that the Court’s opinion in Taylorstressed 18 U.S.C. § 924(e)’s language defining a “crime of violence” as a crime that “has as an element” the u se or threat of force. MartinezCandejas , 347 F.3d at 858 (citations omitted). It was this specific wording that indicated Congress’s intent to make the statute of conviction, and not the underlying offense conduct, controlling as to wheth er the enhancement provision applies. 2However, when the enhancement provision is not de fined “in terms of offenses and their elements,” there is no like indi cation that the underlying facts are irrelevant in applying the enhancement. Id. at 859. As such, we concluded that the categorical approach does not apply to § 2 L1.2(b)(1)(vii)’s enhancement for “an alien smuggling offense,” as this category is not defined in terms of specific elements or offenses. Id. Whether § 2L1.2(b)(1)(i)’s enhancement for “a drug trafficking offense” is subject to the categorical approach as Mr. Millan-T orres argues is a question we have not yet decided. Cf. United States v. Madera-Madera , 333 F.3d 1228, 1233 (11th Cir. 2003) (holding that § 2L1.2’s “drug-traf ficking offense” category is also not defined in terms of elements like other categories within this provision).3 Given our resolution of this issue, Mr. Millan-Torr es’s argument that the

district court lacked sufficient “judicially notice able facts” to conclude he was convicted of a drug-trafficking offense is foreclos ed and we will not address it further. See Aplt. Br. at 16-18. - 12 - Because we conclude we would reach the same result whether we applied the categorical approach or considered the facts underl ying Mr. Millan-Torres’s conviction, we do not need to decide the issue in t his case either. 3 The application notes to § 2L1.2 define “drug trafficki ng offense” as “an offense . . . that prohibits the manufacture, import, export, dis tribution, or dispensing of a controlled substance . . . or the possession of a c ontrolled substance . . . with intent to manufacture, import, export, distribute, or dispense.” U.S.S.G. § 2L1.2, comment. (n.1(B)(iv)) (2003). The California statute Mr. Millan-Torres was convicted under provides that every person who “transports, imports . . ., sells, furnishes, administers, or gives away, or offers to transport, import . . ., sell, furnish, administer, or give away, or attempts to i mport . . . or transport [a controlled substance] . . ., shall be punished.” C al. Health & Safety Code §
11352. Comparing these two provisions, each of the acts pr ohibited in the California statute fall within the Guideline defini tion of a “drug trafficking offense.” Madera-Madera , 333 F.3d at 1233 (“[T]he Commission defined drug trafficking by the type of conduct prohibited by th e state statute. Therefore, the4 Mr. Millan-Torres also argues that given the nature of California’s statute,

his prior conviction does not conclusively establis h an aggravated felony rendering invalid an enhancement on this basis as w ell. However, because the district court did not enhance Mr. Millan-Torres’s sentence on the basis of an aggravated felony conviction, we need not address this argument. - 13 - question is not whether the wording of the [state] statute exactly matches the Application Note to the Guideline, but rather wheth er the federal definition of drug trafficking in the Guidelines is satisfied by [the state statute].) Indeed, the only close question relates to California’s “offers to . . . ” language. However, because the Guideline specifies that offenses which“prohibit ” the listed drug activities are drug-trafficking offenses, this lang uage is covered as well. California’s statute makes clear that as a matter o f policy it has chosen to prohibit certain drug activities, like importation, by punis hing not only the completed performance of such acts, but also the “offers to” or “attempts to” perform such
acts. See Madera-Madera , 333 F.3d at 1231-32 (discussing policy of state l aw in determining whether conviction meets § 2L1.2’s defi nition of drug-trafficking offense). And whereas the definition does not spec ify the offense must punish only completed acts, we find that the California st atute, as a whole, falls within the “family of offenses” contemplated by the Guidel ine. Martinez-Candejas , 347 F.3d at 856. Thus, the district court did not plai nly err in enhancing Mr. MillanTorres’s sentence under § 2L1.2 provision. 45 Mr. Millan-Torres argues that there was constitutio nal error as the

mandatory application of the Guidelines violated hi s Fifth Amendment right to due process. However, he does nothing more than bo ldly assert this violation without establishing the “essential predicate for adue process claim,” which we specifically rejected in Gonzalez-Huerta . 403 F.3d 727, 732 n.2 (10th Cir. 2005) (en banc). - 14 - B. Booker Argument Finally, in supplemental briefing, Mr. Millan-Torre s argues that his sentence violates Booker v. United States , __ U.S. __, 125 S. Ct. 738, because the district court applied the Guidelines in a mandatory rather than advisory fashion. He does not claim a Sixth Amendment violation, howe ver, making this a nonconstitutional Bookererror case. 5 United States v. Gonzalez-Huerta , 403 F.3d 727, 731-32 (10th Cir. 2005) (en banc). As this ar gument was also raised for the first time on appeal, we review it for plain error as well. Id. at 732. As we held in Gonzalez-Huerta , the first two prongs of the plain error analysis are satisfied in non-constitutional Bookererror cases. However, in this case it is clear that Mr. Millan-Torres cannot sati sfy the fourth prong of the analysis. Under prong four, the defendant must est ablish that the sentencing error “seriously affects the fairness, integrity, or publ ic reputation of judicial proceedings” before we can exercise our discretion and remand for resentencing. Id. at 736 (citation omitted). This is a demanding st andard and is only met “in those rare cases in which core notions of justice are offended.” Id. at 739.- 15 -

Here, as in Gonzalez-Huerta , Mr. Millan-Torres merely provided a citation to United States v. Hughes , 396 F.3d 374, 381 (4th Cir. 2005), in support of the fourth prong, which is woefully insufficient. Gonz alez-Huerta , 403 F.3d at 737 (“Providing this quotation is a far cry from establ ishing that a miscarriage of justice would occur if we do not remand.”); see also United States v. Yazzie , 407 F.3d 1139, 1146 (10th Cir. 2005) (en banc) (same). Further, the facts here are not comparable to those in the cases where we have foun d the fourth prong satisfied.
See United States v. Trujillo-Terrazas , 405 F.3d 814, 820-21 (10th Cir. 2005) (fourth prong satisfied where prior arson convictio n involving $35 in damage resulted in 16-level increase and district judge co mmented he wished he did not have to impose the sentence); United States v. Will iams , 403 F.3d 1188, 1200 (10th Cir. 2005) (fourth prong satisfied where sign ificant enhancement was based on momentary gun possession and district judge comm ented the applicable Guideline sentence was “gross,” “immoral”). Mr. Mi llan-Torres pled guilty to illegal reentry and in so doing admitted to the fac ts underlying his prior conviction. The district court then considered the PSR and its addendums and reduced Mr. Millan-Torres’s criminal history catego ry one level as recommended finding his criminal history was over-represented at the higher level and sentenced him at the bottom of the applicable guide line range. There is nothing in the record evidencing the court was uncomfortabl e with the resulting sentence,- 16 -

or that the facts here warrant a different conclusi on. As such, we cannot conclude that Mr. Millan-Torres’s sentence is “‘particularlyegregious’ or a ‘miscarriage of justice.’” Gonzalez-Huerta , 403 F.3d at 738.
AFFIRMED.

Entered for the Court
Paul J. Kelly, Jr. Circuit Judge