IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 11-40047

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

LEONARDO JIMENEZ-TOVAR,

Defendant-Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 1:09-CR-1339-1

Before DAVIS, BENAVIDES, and STEWART, Circuit Judges. 

PER CURIAM:*

Leonardo Jimenez-Tovar (Jimenez) appeals from his conviction of being

found illegally in the United States following removal. He contends that the

documents used to prove his 1983 California conviction of sale of a controlled

substance did not prove that he committed a drug trafficking offense for

purposes of the 12-level offense level adjustment of U.S.S.G. § 2L1.2(b)(1)(B). He

asserts that California abstracts of judgment are unreliable as a matter of law;

that the charging instrument is insufficient to prove a drug trafficking offense

United States Court of Appeals

Fifth Circuit

F I L E D

September 29, 2011

Lyle W. Cayce

Clerk

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.

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No. 11-40047

because it may have merely tracked the language of section 11352; and that the

entry of plea document is insufficient because it contains check-off boxes, is not

a transcript, and bears no judicial signature. 

We review for plain error the issue whether Jimenez committed a drug

trafficking offense, as Jimenez did not raise that issue in the district court. See

United States v. Whitelaw, 580 F.3d 256, 259 (5th Cir. 2009). To the extent that

Jimenez challenged the adequacy of the documents to prove his conviction, his

challenge on appeal to the documents should be reviewed de novo as to the

district court’s legal conclusions and for clear error as to its factual findings. See

United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2009).

We employ the categorical approach set forth in Taylor v. United States,

495 U.S. 575, 602 (1990), to determine whether a prior conviction qualifies as a

drug-trafficking offense under § 2L1.2. UnitedStates v. Rodriguez, 523 F.3d 519,

524 (5th Cir. 2008); United States v. Garza-Lopez, 410 F.3d 268, 273 (5th Cir.

2005). In so doing, we look to the elements of the prior offense, rather than to

the facts underlying the conviction. Garza-Lopez, 410 F.3d at 273. However,

when a statute includes conduct that both does and does not constitute a drug

trafficking offense, we may look to records of the conviction to determine

whether the defendant’s conduct fell under a statutory section constituting a

drug trafficking offense. United States v. Gutierrez-Ramirez, 405 F.3d 352, 356,

359 (5th Cir. 2005). “Such records include the charging paper, a written plea

agreement,the guilty-plea transcript, factual findings by the trial judge to which

the defendant assented, and jury instructions.” Rodriguez, 523 F.3d at 524.

The challenged documents here were not necessary to determine how

Jimenez violated section 11352. The abstract and entry of plea document

demonstrate that Jimenez’s guilty plea was responsive to the two counts of the

complaint alleging that he sold heroin. A clerical document like an abstract may 

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No. 11-40047

be used to prove the existence of a prior conviction. See United States v. MorenoFlorean, 542 F.3d 445, 449-50 & n.1 (5th Cir. 2008); United States v.

Neri-Hernandes, 504 F.3d 587, 590-92 (5th Cir.2007). Here, the complaint

charging Jimenez with the sale of heroin indicated how he violated section

11352; the challenged documents merely indicated that his guilty plea was

responsive to the counts of the complaint alleging actual sale. The actual sale

of heroin falls within the definition of a drug trafficking offense. See § 2L1.2,

comment. (n.1(B)(iv)).

AFFIRMED.

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