### IN THE UNI TED STAT ES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

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 rem o val. He contends that the documents used to prove h i s 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 U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

### F I L E D Sep tem ber 2 9, 2 011 Lyle W . Cayce Clerk

Purs uant to 5 T H C IR

. R. 47.5 , the cour t hasd ete rm inedt hat this op inion sho uld not * be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t forth in 5 T H C IR

. R. 47.5 .4. Case: 11-40047 Document: 00511617606 Page: 1 Date Filed: 09/29/2011No. 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 wheth e r J i m e n ez 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 s h o u l d 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. 200 9). 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. United Sta tes v . Rodriguez , 523 F.3d 519, 524 (5th Cir. 2008); U n i t e d S t ates 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-Lo p ez, 410 F.3d at 273. However, when a statute includes conduct that both does and does not constitute a drug trafficking offense, w e m ay l o ok to records of the conviction to determine whether the defendant’s conduct fell u n d e r 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 char gi n g paper, a written plea agreement , th e 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 n o t n e c essary to determine how Jimenez violated section 11352. The abstract and entry of p lea 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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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. 2 0 0 8); United States v. Neri-Hernandes , 504 F

. 3 d 5 87, 590-92 (5th Cir.2007). Here, the complaint charging Jimenez with the sale of heroin indi c a t e d h o w he violated section 11352; the challenged documents merely in dicated that his guilty plea was responsive to the counts of the complaint alleging actual sale. The actual sale of heroin falls within the defi n i t ion of a drug trafficking offense. See § 2L1.2, comment. (n.1(B)(iv)). AFFIRMED.

3 Case: 11-40047 Document: 00511617606 Page: 3 Date Filed: 09/29/2011