### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

No. 11-40642 Summary Calendar

UNITED STATES OF AMERICA, Plaintiff - Appellee

v. DIEGO DUQUE-HERNANDEZ, Defendant - Appellant

Appeal from the United States District Court for the Southern District of Texas

Before SMITH, PRADO, and HIGGINSON, Circuit Judges. HIGGINSON, Circuit Judge: D i e go D u qu e - H e r n a n d e z p l e a d e d gu il ty t o ill e g al reentry after deport ati o n , in violation of 8 U.S.C. § 1326(a) and (b), and wa s sentenced to 51 months of imprisonment—the low en d o f h is Guidelines range—and three years of supervised release. He appeals his sentence, arguin g t h a t the district court erred by applyi n g a t w e l ve-level adjustment to his base offense level for his previous commission of a drug trafficking offense. Under § 2L1.2(b)(1)(B) of t h e Sentencing G uidelines, a twelve-level adjustment to a d efendant’s base offense l evel is appl i e d if the defendant was previously convicted o f “a f elony drug trafficking offense for which the s entence U n i t e d S t a te s C o u rt o f A p p e al s

F i f t h C i rc u i t 

### F I L E D February28, 2013 Ly l e W . Cay ce Clerk Case: 11-40642 Document: 00512159511 Page: 1 Date Filed: 02/28/2013No. 11-40642

imposed was 13 months o r less.” A drug trafficking offense is d efined a s “offense under federal, s t a te, or local law that prohibits th e manufacture, import, export, distribution, o r dispensing o f, o r offer to sell a c ontrolled substance (or a counterfeit substance) or the poss e s s i o n of a controlled substance (or a counterfeit s ubstance) with intent to m anufacture, import, export, distribute, or dispense” U.S.S.G. § 2L1.2 c mt. Prior conv i ctions i nvolving the attempt to commit such offenses are included within this definition. § 2L1.2 cmt. Duque-Hernandez w as previously convicted o f § 58-37-8(1)(a)(ii) of the Utah Criminal Code, which makes it a felony “to knowingly and intentionally:

. . . distribute a c ontrolled or counterfeit substance, or to agree, consent, offer, or arrange to distribute a controlled or counterfeit substance.” T he probable cause statement on the second page of the charging document, which was sworn to by

a l a w enforcement officer, i ndicates that “the defendant offered t o sell [ an undercover officer] a substance w hich was represented t o be c ocaine. ” Noting that the Guidelines were amended i n 200 9 to include offers of s ale as drug trafficking offenses under § 2L1.2(b)(1)( B) , th e p resentence r eport recommended applying the adjustment o n that b asis, and the district court adjusted upward Duque-Hernandez’s base offense level accordingly. Because Duque-Hernandez did not object to the applica t ion of the adjustment, our review i s for plain error. United States v
. Mondragon-Santiago , 564 F.3d 357 ( 5 t h C ir. 2009). To demonstrate plain error, h e must show a forfeited error that is clear or obvious and that a ffects h is substantial rights. See Puckett v. United States , 556 U.S. 129, 135 (2009). I f he makes such a showing,

we have the discretio n t o c o r r ect the error b ut only if it seriously affects the fairness, integrity, or public reputation of judicial p r o c e e d i ngs. I d.; see also United S ta t es v. Escalante-Reyes , 689 F.3d 415, 4 25 (5th Cir. 2012) (en banc) (declining “to adopt a blanket rule that once prejudice is found under the [third plain error prong], th e e rror invariably requires correction”). The S upreme
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Court recently reiterated the importance of this independent fourth assessment

we must make before correcting an error urged on appeal for the first time. See Henderson v. U

nited States , 568 U.S.

_ __, 2013 WL 610203, at *9 (Feb. 2 0, 2013) (emphasizing that the plain error rule “contains other screen i n g c riteria” in addition to the “error” and “plainness” requirements). The objection Duque-Hernandez failed to raise at a timely point c oncerns the district c ourt’s a djustment of h is b as e o f f e n s e level, pursuant to § 2L1.2(b)(1)(B), on the basis of his previous conviction under § 58-37-8(1)(a)(ii) of t h e U t ah Criminal C ode. He contends that the statute of convic t i o n encompasses conduct that falls o u t s i d e th e definition o f a “drug trafficking offense” under § 2L1.2(b)(1)(B), and suggests that the probable cause statement attached to his i nformation is not a Shepard -approved document and should not have been relied upon to support the application of the adjustment. Concluding that the sentencing e rror, if any, does not seriously affect the fairness, integrity, or public reputati o n o f judicial proceedings, we decline to

e x e rcise our discretion to c orrect it. See United S tates v. Ellis , 564 F.3 d 3 7 0 , 378–79 (5th Cir. 2009) (“[E]ven if an i n c r e a s e in a sentence [can] be seen as inev i tably ‘substantial’ in one sense it does not inevitably affect the fairness, integrity, or public reputation of judicial process and proceedings.”). Our conclusion rests on three considerations. First, although we t ake no pos i t i o n o n the propriety of using a probable

cause statement attached to a charging d ocument to a scertain whether a prior state conviction qualifies as a “drug trafficking offense” within the m eaning of § 2L1.2 (b)(1)(B), 1 we perceive no error in reviewing this statement to assess

1 The Fourth Circuit has held that af fid avits of p robable caus e that are a p art of the chargi n g p ap ers , or that are exp res s ly incorp orated into the charging p ap ers , m ay be
cons id ered in d eterm ining the ap p rop riate n e ss o f sentencing enhancem ents

. See U ni ted Sta tes v
. Ki rksey , 138 F. 3d 120, 126 ( 4th Cir. 1998)

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whether the application of the drug t rafficking adjustment seriously affected the fairness, integrity, or public r eputation of the proceedings, cf. United States v. Trejo , 610 F.3d 308, 313 (5th Cir. 2010) (“In a ssessing factual sufficiency under the plain error standard, we may l ook b e yond those facts admitted by the defendant during the plea colloquy and scan t h e e n t i re record for facts supporting his conviction.”). In this instance, referen c e t o t h e p robable cause statement attached t o the i nf o r m ati o n t o whi c h D u qu e - H e r n a n d e z p l e a d e d gu ilty indicates that he offered t o s e l l cocaine t o an undercover officer, a fact that, if proved or admitted, would have triggered the drug trafficking adjustment. Second, we point out that Duque-Hernandez and his c ounsel were wellpositioned to object t o the drug trafficking adjustment, h aving previously raised the same argument on appea l to contest the sentence imposed for his prior illegal reentry conviction. See United States v. Duque-Hernandez , 2 27 F. App’x 326 (5th Cir. 2007). Yet counsel for Duque-Hernandez broadly stated, “We agree with the scoring”; or, i n a light most favorable, h e n eglected to interpose the very objection he had asserted previously. Finally, we note that Duque-Hernandez’s sentence of 5 1 months of imprisonment has strong f oundation. As h is three prior federal illegal reentry convictions demonstrate, Duque-Hernandez has persistently disregarded the immigration laws of the U nited States. He has used a liases t o evade detection and, once here, has violated the country’ s d r u g l a w s
. He has p reviously been convicted of selling cocaine to an undercover o fficer, and, on this occasion, was captured attempting to enter the country with duffel bags full of illegal narcotics

on behalf of a Mexican cartel. Among o ther crimes, D uque-Hernandez has also been convicted of domestic violence and carrying a concealed firearm. The judgment of sentence is AFFIRMED.

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