This order and judgment is not binding precedent except under the doctrines of *

law of the case, res judicata and collateral estoppel. The court generally disfavors the

citation of orders and judgments; nevertheless, an order and judgment may be cited under

the terms and conditions of 10th Cir. R. 36.3.

F I LED

United States Court of Appeals

Tenth Circuit

June 21, 2006

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

JAVIER MENDOZA-GUARDIOLA,

Defendant - Appellant.

No. 05-2296

(D. New Mexico)

(D.Ct. No. CR-05-690-JH)

ORDER AND JUDGMENT

*

Before HENRY, BRISCOE, and O’BRIEN, Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

On May 5, 2005, Javier Mendoza-Guardiola pled guilty to one count of

illegal reentry following deportation in violation of 8 U.S.C. § 1326(a). The
 The PSR determined Mendoza-Guardiola’s base offense level was eight pursuant 1

to USSG §2L1.2(a). Twelve levels were added for his prior felony “drug trafficking”

conviction. Mendoza-Guardiola also received a three level downward adjustment for

acceptance of responsibility pursuant to USSG §3E1.1. Thus, his total offense level was

seventeen, with a criminal history category of I, resulting in a guideline range of twentyfour to thirty months.

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district court sentenced him to twenty-four months’ imprisonment. That sentence

was in accord with the recommendation in the Presentence Investigation Report

(PSR), which recommended a twelve-level enhancement because the defendant

had a prior felony drug trafficking conviction. See United States Sentencing 1

Commission, Guidelines Manual, § 2L1.2(b)(1)(B) (2004). Defendant objected to

the PSR, arguing that he was not subject to the twelve-level enhancement because

his prior felony conviction, although an “aggravated felony,” was not a felony

“drug trafficking offense” for purposes of USSG §2L1.2(b)(1)(B). The district

court disagreed. It also rejected Mendoza-Guardiola’s argument that a sentence

within the applicable guideline range was unreasonable and denied his request for

a downward departure. Judgment was entered on September 2, 2005. MendozaGuardiola timely appealed. He raises the same argument on appeal that he did

below, i.e., his prior conviction was not a “felony drug trafficking offense,” and

adds that the district court’s sentence was unreasonable. We exercise jurisdiction

under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291 and AFFIRM.
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Discussion:

We review the district court’s application and interpretation of the

Sentencing Guidelines de novo. United States v. Chavez-Valenzuela, 170 F.3d

1038, 1039 (10th Cir. 1999). However, we review factual findings for clear error. 

United States v. Serrata, 425 F.3d 886, 906 (10th Cir. 2005). The classification

of a prior conviction is a question of law we review de novo. United States v.

Martinez-Villalva, 232 F.3d 1329, 1332 (10th Cir. 2000). We review sentences

imposed after United States v. Booker, 543 U.S. 220 (2005), for reasonableness. 

United States v. Glover, 413 F.3d 1206, 1210 (10th Cir. 2005). We note that the

district court “is not required to consider individually each factor listed in §

3553(a) before issuing a sentence.” United States v. Kelley, 359 F.3d 1302, 1305

(10th Cir. 2004). “If . . . the district court properly considers the relevant

Guidelines range and sentences the defendant within that range, the sentence is

presumptively reasonable.” United States v. Kristl, 437 F.3d 1050, 1055 (10th

Cir. 2006). “The defendant may rebut this presumption by demonstrating that the

sentence is unreasonable in light of the other sentencing factors laid out in [18

U.S.C.] § 3553(a).” Id.

Section 2L1.2(b)(1)(B) calls for a twelve-level enhancement to the base

offense level if the defendant was deported after having been convicted of a

“felony drug trafficking offense for which the sentence imposed was 13 months or

less . . . .” The sentencing guidelines define a “[d]rug trafficking offense” as “an
 Section 1952 provides: 2

(a) Whoever travels in interstate or foreign commerce or uses the mail or any

facility in interstate or foreign commerce, with intent to --

(1) distribute the proceeds of any unlawful activity; or

(2) commit any crime of violence to further any unlawful activity; or

(3) otherwise promote, manage, establish, carry on, or facilitate the

promotion, management, establishment, or carrying on, of any unlawful

activity,

and thereafter performs or attempts to perform --

(A) an act described in paragraph (1) or (3) shall be fined under this

title, imprisoned not more than 5 years, or both; or

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offense under federal, state, or local law that prohibits . . . the possession of a

controlled substance . . . with intent to distribute . . . .” USSG §2L1.2, comment.

(n.1(B)(iv)). To determine whether Mendoza-Guardiola’s prior conviction

constitutes a “drug trafficking offense,” the court must first look to the statutory

definition of the crime. See United States v. Reyes-Castro, 13 F.3d 377, 379

(10th Cir. 1993). We employ a “categorical approach” to determine whether

Mendoza-Guardiola’s prior conviction under 18 U.S.C. § 1952 is a “drug

trafficking offense.” United States v. Herrera-Roldan, 414 F.3d 1238, 1240-41

(10th Cir. 2005); see also United States v. Martinez-Hernandez, 422 F.3d 1084,

1088 (10th Cir. 2005) (characterizing Herrera-Roldan as applying the categorical

approach). By its terms, 18 U.S.C. § 1952 reaches different types of conduct.2
(B) an act described in paragraph (2) shall be fined under this title,

imprisoned for not more than 20 years, or both, and if death results

shall be imprisoned for any term of years or for life.

(b) As used in this section (i) “unlawful activity” means (1) any business

enterprise involving gambling, liquor on which the Federal excise tax has not been

paid, narcotics or controlled substances (as defined in section 102(6) of the

Controlled Substances Act), or prostitution offenses in violation of the laws of the

State in which they are committed or of the United States, (2) extortion, bribery, or

arson in violation of the laws of the State in which committed or of the United

States, or (3) any act which is indictable under subchapter II of chapter 53 of title

31, United States Code, or under section 1956 or 1957 of this title . . . . 

 The information stated: 3

Javier Mendoza, defendant herein, did travel in interstate commerce, from the state

of Oklahoma, to the state of Illinois, with intent to promote, manage, establish,

carry on [and] facilitate the promotion, management, establishment and carrying

on of unlawful activity, to wit, the knowing and intentional possession with intent

to distribute approximately 47 pounds of marijuana, a Schedule II Non-Narcotic

Controlled Substance, and thereafter, on April 19, 1989, did perform and cause to

be performed acts facilitating said unlawful activity; all in violation of [18 U.S.C.

§] 1952.

(Appellee’s Exh. 1 at 1.)

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United States v. Rodriquez-Duberney, 326 F.3d 613, 617 (5th Cir. 2003). Thus,

the court “may look to the charging paper and judgment of conviction” to

determine how the offense should be classified. United States v. VenegasOrnelas, 348 F.3d 1273, 1275 (10th Cir. 2003).

The information to which Mendoza-Guardiola pled guilty in the original

case specifically alleged he possessed marijuana with the intent to distribute it.3

Although his plea agreement and the judgment may not have mentioned that

Mendoza-Guardiola possessed marijuana with the intent to distribute, Mendoza-
 Mendoza-Guardiola’s prior conviction need not be pled in the indictment or 4

proven beyond a reasonable doubt to a jury. Almendarez-Torrez v. United States, 523

U.S. 224, 226-27 (1998). Nor can we set aside the holding of Almendarez-Torres based

upon the Supreme Court’s recent decision in Shepard v. United States, 544 U.S. 13

(2005). Although Shepard casts some doubt on the continuing validity of AlmendarezTorres, the Supreme Court has not overruled it and we continue to be bound by it. See

Shepard, 544 U.S. at 27 (Thomas, J., concurring) (stating that Almendarez-Torres “has

been eroded by this Court’s subsequent Sixth Amendment jurisprudence, and a majority

of the Court now recognizes that Almendarez-Torres was wrongly decided”); United

States v. Moore, 401 F.3d 1220, 1224 (10th Cir. 2005) (“[W]e are bound by existing

precedent to hold that the Almendarez-Torres exception to the rule announced in

Apprendi [v. New Jersey, 530 U.S. 46 (2000)] and extended to the Guidelines in Booker

remains good law.”). Mendoza-Guardiola concedes this Court is still obligated to follow

Almendarez-Torres, but raises the issue “in order to preserve the claim for further

review.” (Appellant’s Br. at 27.)

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Guardiola specifically pled guilty to the information and therefore admitted all

the allegations contained therein. United States v. Broce, 488 U.S. 563, 570

(1989); United States v. Hill, 53 F.3d 1151, 1155 (10th Cir. 1995). The

allegations in the indictment, to which Mendoza-Guardiola admitted by pleading

guilty, are sufficient to establish that his prior conviction was for a “drug

trafficking offense.” Thus, the district court’s imposition of a twelve-level

enhancement was not error.4

Nor is Mendoza-Guardiola’s sentence unreasonable. Mendoza-Guardiola

was sentenced within a correctly calculated guideline range. Thus, the sentence

imposed in this case is presumptively reasonable. Kristl, 437 F.3d at 1055. The

district court considered and applied the sentencing factors in § 3553(a) and relied

heavily upon the fact that Mendoza-Guardiola had not received any criminal
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history points for his prior conviction. Additionally, the district court deemed

Mendoza-Guardiola’s “family situation, [] financial situation, [] illegal status, and

[] reasons for returning to the United States are not factors that take his case

outside of the heartland of cases, of those who are similarly situated” and

sentenced him at the bottom of the sentencing range. (R. Vol. III at 35, 36.) 

Mendoza-Guardiola has failed to adequately rebut the presumption of

reasonableness by establishing the sentence was unreasonable in light of the

sentencing factors in § 3553(a).

AFFIRMED.

Entered by the Court:

Terrence L. O’Brien

United States Circuit Judge