IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 16-50033

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee

v.

JOEL HUMBERTO RENTERIA-MARTINEZ, 

 Defendant - Appellant

Appeal from the United States District Court

for the Western District of Texas

Before JOLLY, SMITH, and PRADO, Circuit Judges.

PER CURIAM:

Joel Humberto Renteria-Martinez appeals the district court’s 

application of a 16-level sentence enhancement under § 2L1.2(b)(1)(A)(i) of the 

United States Sentencing Guidelines, based on a previous Texas state 

conviction that the district court found to be a drug trafficking offense. 

Although the state court judgment for the previous conviction indicated that 

Renteria-Martinez was convicted of simple possession of cocaine, other state 

court documents related to the previous conviction include the language “with 

intent to deliver,” indicating a drug trafficking offense. Renteria-Martinez did 

not object to the Pre-Sentence Report (“PSR”), which characterized his 

previous offense as a “drug trafficking offense.” Thus, although the district 

United States Court of Appeals

Fifth Circuit

FILED

February 2, 2017

Lyle W. Cayce

Clerk

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judge erred in applying the 16-level sentence enhancement, we apply plain 

error review and AFFIRM.

I.

Renteria-Martinez pleaded guilty to attempted illegal reentry into the 

United States following deportation in violation of 8 U.S.C. § 1326. His PSR 

assessed a base offense level of 8. It then applied a 16-level enhancement based 

on a previous “drug trafficking offense” under U.S.S.G. § 2L1.2(b)(1)(A)(i). The 

PSR described the 2000 cocaine conviction in Texas state court as a “felony 

conviction for the drug trafficking offense, Possession of a Controlled 

Substance with Intent to Deliver Cocaine 4 Grams or More but Less Than 200 

Grams.” Such an offense triggered the 16-level enhancement. A three-level 

reduction for acceptance of responsibility caused Renteria-Martinez’s total

offense level to be 21. Coupled with a criminal history category of IV, the total 

offense level yielded a guideline imprisonment range of 57 to 71 months. 

Renteria-Martinez did not object to the PSR or to the guidelines range. The

district judge adopted the findings of the PSR and sentenced RenteriaMartinez to 57 months of imprisonment, which was to be followed by three 

years of supervised release. Renteria-Martinez timely appealed, challenging 

for the first time the district court’s imposition of the 16-level sentence 

enhancement.

II.

Because Renteria-Martinez did not object to the drug-trafficking 

sentence enhancement in the district court, we review for plain error. United 

States v. Hernandez, 690 F.3d 613, 620 (5th Cir. 2012). Plain error review 

involves four prongs. Puckett v. United States, 556 U.S. 129, 135 (2009). They 

are:

First, there must be an error or defect—some sort of “[d]eviation 

from a legal rule”—that has not been intentionally relinquished or 

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abandoned . . . by the appellant. Second, the legal error must be 

clear or obvious, rather than subject to reasonable dispute. Third, 

the error must have affected the appellant’s substantial rights, 

which in the ordinary case means he must demonstrate that it 

“affected the outcome of the district court proceedings.” Fourth 

and finally, if the above three prongs are satisfied, the court of 

appeals has the discretion to remedy the error—discretion which 

ought to be exercised only if the error “‘seriously affect[s] the 

fairness, integrity or public reputation of judicial proceedings.’”

Puckett, 556 U.S. at 135 (alteration in original) (citations omitted) (quoting 

United States v. Olano, 507 U.S. 725, 732–33, 736 (1993)).

III.

A.

Section 2L1.2(b)(1)(A)(i) of the Sentencing Guidelines allows for a 16-

level enhancement if the defendant was previously deported following a 

conviction “for a felony that is (i) a drug trafficking offense for which the 

sentence imposed exceeded 13 months.” U.S.S.G. § 2L1.2(b)(1)(A)(i). The 

Commentary notes define “drug trafficking offense” in pertinent part as an 

offense that “prohibits . . . the possession of a controlled substance (or a 

counterfeit substance) with intent to manufacture, import, export, distribute, 

or dispense.” § 2L1.2 cmt. n.1(B)(iv).

B.

Renteria-Martinez contends that the district judge erred in applying the 

16-level drug trafficking enhancement based on his 2000 Texas state court 

conviction. To support his argument, he points to the 2000 state court 

judgment, which indicates that Renteria-Martinez was convicted of “unlawful 

possession of a controlled substance to wit: cocaine.” Possession alone does not 

equate to drug trafficking. United States v. Sarabia-Martinez, 779 F.3d 274, 

276–77 (5th Cir. 2015). Further, the Texas judgment provides that the offense 

was second-degree; Renteria-Martinez argues that this description is 

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consistent with a conviction for simple possession under Texas law, not for 

possession with intent to deliver. 

Section 481.115(d) of the Texas Health & Safety Code provides that a 

drug possession offense is “a felony of the second degree if the amount of the 

controlled substance possessed is, by aggregate weight, . . . four grams or more 

but less than 200 grams.” TEX. HEALTH & SAFETY CODE ANN. § 481.115(d) 

(West 2015). Possession of a controlled substance in the amount of four to 200 

grams is a felony in the first degree, however, if it is possessed “with intent to 

deliver.” § 481.112(d). Renteria-Martinez argues that because the Texas 

judgment defined the offense as a second-degree offense for unlawful 

possession of cocaine, and because the judgment omitted any language 

regarding an “intent to deliver,” the Texas cocaine conviction does not meet the 

definition of “drug trafficking offense” in the Sentencing Guidelines. 

The Government argues in response that no error occurred because the 

2000 Texas state court offense was possession of cocaine with intent to deliver. 

The Government points to a number of state court documents that support this 

conclusion: the docket sheet, incorporating by reference the indictment; 

Renteria’s judicial confession; and a motion by the Government to reduce 

Renteria’s charge. It is undisputed that the only document that indicates a 

crime other than an offense “with intent to deliver” is the judgment itself. 

Moreover, a handwritten note included with the judgment provides, “All other 

docs. (except judgment) indicate w/int. to deliver.” The identity of the writer 

of the note is not apparent. Thus, the Government contends, the description 

of the offense of conviction on the judgment is a scrivener’s error, and the 2000 

Texas state court conviction was properly characterized as a drug trafficking 

offense by the district court.

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C.

In our plain error analysis, we first determine whether an error occurred. 

In doing so, we may look to “the record as supplemented on appeal.” United 

States v. Wikkerink, 841 F.3d 327, 332 (5th Cir. 2016). Although the docket 

and Renteria-Martinez’s judicial confession were not before the district court, 

we granted an unopposed motion to supplement the record with these 

documents and may therefore consider them. 

Notwithstanding the uniform inconsistency of the related state court 

documents, we find that the judgment is more probative of conviction because 

it represents the final determination in the case and bears the judge’s 

signature. Moreover, § 2L1.2(b)(1)(A) of the Sentencing Guidelines references 

a “conviction” rather than a charge or guilty plea. Here, the conviction was for 

“possession of a controlled substance to wit: cocaine” in the second degree. To 

be sure, however, even if the conviction had included the language “possession 

with intent to deliver,” it would not necessarily change the outcome here; we 

recently held that a conviction under Section 481.112(a) of the Texas Health & 

Safety Code, which includes the language “intent to deliver,” does not 

constitute a “controlled substance offense” under the Guidelines when a 

categorical approach analysis is applied. United States v. Tanksley, No. 15-

11078, 2017 WL 213835, at *7 (5th Cir. Jan. 18, 2017). In any event, the 

district court erred in applying the 16-level drug trafficking sentence 

enhancement based on a previous conviction for which the final judgment does 

not fit the criteria for a drug trafficking offense under the Sentencing 

Guidelines.

For the purposes of the plain error analysis, we pretermit a decision 

regarding the second and third prongs and assume arguendo that Renteria-

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Martinez has shown that the error was “clear or obvious” and that it affected 

his substantial rights.1 

Even assuming arguendo that Renteria-Martinez has satisfied the first 

three prongs of the plain error analysis, we halt at the fourth prong and decline 

to exercise our discretion to remedy the district court’s error. Under the fourth 

prong of the plain error analysis, such discretion ought only to be exercised 

when “the error seriously affect[s] the fairness, integrity or public reputation 

of judicial proceedings.” United States v. Escalante-Reyes, 689 F.3d 415, 419 

(5th Cir. 2012) (en banc) (alteration in original) (quoting Puckett, 556 U.S. at 

135). We further recognize that the errors for which reversal on the fourth 

prong is appropriate include “ones that ‘would shock the conscience of the 

common man, serve as a powerful indictment against our system of justice, or 

seriously call into question the competence or integrity of the district judge.’” 

United States v. Segura, 747 F.3d 323, 331 (5th Cir. 2014) (quoting EscalanteReyes, 689 F.3d at 435).

Here, every document in the record related to the 2000 Texas state court 

conviction includes the language “with intent to deliver” except the judgment. 

The PSR findings adopted by the district court described the 2000 Texas state 

conviction as possession “with intent to deliver.”2 Renteria-Martinez’s judicial 

confession in the 2000 offense also included the language “with intent to 

deliver,” as did the state court docket. Although the state court judgment of 

 

1 The Government conceded that the application of the 16-level enhancement affected 

Renteria-Martinez’s substantial rights. Absent the 16-level enhancement, RenteriaMartinez would have received an 8-level enhancement for a separate drug trafficking offense, 

which would have yielded a guideline sentencing range of 24 to 30 months imprisonment. 

The difference, therefore, is one of at least 27 months. 

2 The PSR description of the 2000 Texas conviction also noted that the total weight of 

the cocaine found in Renteria-Martinez’s vehicle was 4,437.3 grams and that he was 

originally charged with “Possession with Intent to Deliver 400 grams or More of Cocaine” 

before the State moved to reduce the offense.

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his conviction omitted the language “with intent to deliver,” it is clear that the 

offenses underlying the conviction implicated the act of delivery of a controlled 

substance. More important, however, Renteria-Martinez showed proclivities

of recidivistic behavior; at the time of the 2000 offense, he was on probation for 

a 1996 marijuana conviction. We have declined to exercise our discretion 

under plain error review in other cases involving recidivistic behavior. See, 

e.g., United States v. Davis, 602 F.3d 643, 650–51 (5th Cir. 2010) (declining to 

exercise discretion in factual situation involving a defendant who “violated his 

supervised release only five months into a five-year sentence”). 

The district court’s error here is neither an “indictment against our 

system of justice” nor an error that “shock[s] the conscience of the common 

man” or undermines the integrity of the judicial proceedings. We therefore 

decline to exercise discretion.

IV.

In sum, we decline to exercise discretion to remedy the district court’s 

error under the fourth prong of plain error review and AFFIRM.

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