* 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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 06-40981

UNITED STATES OF AMERICA

Plaintiff - Appellee

v.

CLAIR SHARON STANLEY, also known as Susan Jones

Defendant - Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 5:06-CR-275

Before REAVLEY, JOLLY, and GARZA, Circuit Judges.

PER CURIAM:*

Clair Sharon Stanley appeals her sentence for illegal reentry. She

contends that the district court erred in applying a 16-level enhancement to her

advisory Guidelines range for prior offenses that were said to be “drug

trafficking offenses” under U.S.S.G. § 2L1.2(b)(1)(A)(i). She also contends that

her sentence is unreasonable. Because the district court did not commit plain

error in enhancing Stanley’s offense level or abuse its discretion by imposing an

unreasonable sentence, we AFFIRM.

United States Court of Appeals

Fifth Circuit

F I L E D

June 11, 2008

Charles R. Fulbruge III

Clerk
No. 06-40981

1 Stanley also raises the argument that the “felony” and”aggravated felony” provisions

of 8 U.S.C. § 1326(b)(1) and (2) are unconstitutional. She properly concedes that this issue is

foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235 (1995), and raises the

argument here only to preserve it for further review.

2

I.

Stanley pled guilty to illegal reentry on February 28, 2006. Stanley’s

advisory Sentencing Guidelines range was calculated with an offense level that

included a 16-level enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(i) for two 1992

New York convictions for criminal sale of a controlled substance in violation of

New York Penal Law § 220.39. 

At sentencing, Stanley asked the court to consider her work history, her

purpose for coming to the United States, which was to bring her ill mother to

Honduras, the limited nature of her prior convictions, and her success in her

native Honduras, despite not being literate in Spanish. The district court

calculated a Guidelines range of 57 to 71 months. The court sentenced Stanley

within the Guidelines range to 57 months imprisonment, three years of

supervised release, and a $100 assessment. Stanley appealed her sentence to

this court. 

II.

Stanley contends that her prior New York convictions for criminal sale of

a controlled substance are not “drug trafficking offenses” within the meaning of

U.S.S.G. § 2L1.2(b)(1)(A)(i) and that the district court erred by applying the 16-

level enhancement in calculating her advisory Guidelines range. She also

contends that her sentence is unreasonable.1

III.

A.

Stanley did not object to the application of an enhancement under §

2L1.2(b)(1)(A)(i) for her prior drug convictions, so our review is for plain error

only. Under the plain error standard, we will reverse only if (1) there is an error,
No. 06-40981

3

(2) the error is plain (clear or obvious) under current law, and (3) the error

affects the defendant’s substantial rights. UnitedStates v. Quintana-Gomez, 521

F.3d 495, 496 (5th Cir. 2008). When the three elements of plain error are

present, relief is discretionary with the court of appeals and should be granted

only when a plain error “seriously affect[s] the fairness, integrity, or public

reputation of judicial proceedings.” United States v. Calverley, 37 F.3d 160, 164

(5th Cir. 1994) (en banc) (abrogated in part on other grounds by Johnson v.

United States, 520 U.S. 461, 468 (1997)). 

Section 2L1.2(b)(1)(a)(i) requires a 16-level enhancement for a defendant

who was previously deported or unlawfully remained in the United States after

conviction for a felony that is a drug trafficking offense. The application notes

to the Guidelines provide that 

“Drug trafficking offense" means an offense under

federal, state, or local law that prohibits the

manufacture, import, export, distribution, or dispensing

of a controlled substance (or a counterfeit substance) or

the possession of a controlled substance (or a

counterfeit substance) with intent to manufacture,

import, export, distribute, or dispense. 

U.S.S.G. § 2L1.2 cmt. n.1 (B)(iv).

New York Penal Law § 220.39 provides that “[a] person is guilty of

criminal sale of a controlled substance in the third degree when he knowingly

and unlawfully sells: 1. a narcotic drug.” “Sell” means “to sell, exchange, give or

dispose of to another, or offer or agree to do the same.” NY Penal Law §

220.00(1). 

This court has held that a statute that criminalizes an offer to sell a

controlled substance is not a drug trafficking offense because such conduct lies

outside the definition provided under § 2L1.2. See UnitedStates v. Gonzales, 484

F.3d 712, 716 (5th Cir. 2007) (stating that“offering to sell a controlled substance

does not constitute a drug-trafficking offense”); United States v. Garza-Lopez,
No. 06-40981

2 The Sentencing Commission has proposed an amendment to the definition of “drug

trafficking offense” to clarify that the definition includes “offer to sell.” Absent action by

Congress, this amendment will take effect November 1, 2008. Because this amendment has

not yet taken effect and because we affirm on the basis of Stanley’s guilty plea, we do not

consider the effect of the proposed amendment. 

4

410 F.3d 268, 274 (5th Cir. 2006) (holding that a California statute that

criminalizes “transportation of a controlled substance for personal use and offers

to transport, sell,furnish, administer, or give away a controlled substance”is not

a drug trafficking offense). Under this court’s precedents in Garza-Lopez and

Gonzales, a conviction under New York Penal Statute §220.39[1], based on the

text of the statute alone, is not a conviction for a drug trafficking offense.2

However, where a statute encompasses conduct that both does and does

not constitute a drug trafficking offense, we may rely upon documents such as

the charging instrument, written plea agreement,transcript of the plea colloquy,

and any explicit factual finding by the trial judge to which the defendant

assented to determine whether a prior offense is a drug trafficking offense.

United States v. Morales-Martinez, 496 F.3d 356, 358 (5th Cir. 2007).

Stanley was convicted of criminal sale of a controlled substance after

pleading guilty to indictments alleging that she committed the crime of criminal

sale of a controlled substance in the third degree as follows: “The defendants,

each aiding the other . . . knowingly and unlawfully sold a controlled substance,

to wit: cocaine, to a person known to the grand jury.” 

Although a conviction under § 220.39[1] may be based on an offer or

agreement to sell, exchange, give or dispose of a controlled substance, the

Government contends that Stanley’s guilty plea admits that she was convicted

for having sold cocaine and not merely for an alternative means of committing

the crime, such as an offer to sell. 

We have held that we look to the law of the jurisdiction in which a guilty

plea was entered to determine the effect ofthe plea. Morales-Martinez, 496 F.3d
No. 06-40981

5

at 359. Under New York law, a guilty plea “constitutes an effective judicial

admission by a defendant that he committed the acts charged in the accusatory

instrument.” People v. Lee, 448 N.E.2d 1328, 1329 (N.Y. 1983). Stanley cites

United States v. Gutierrez-Ramirez, 405 F.3d 352 (5th Cir. 2005), for the

proposition that her indictment does not narrow the offense in this case. In

Gutierrez-Ramirez, we stated that we could not use an indictment to narrow the

offense of conviction because “the indictment merely tracks the language of the

statute, and includes language relating to conduct that would not qualify as a

‘drug trafficking offense.’” Id. at 359. Here, however, the indictment does not

include language relating to conductthat would not qualify as a drug trafficking

offense. It alleges that Stanley violated New York Penal Code § 220.39[1]

because she “knowingly and unlawfully sold” cocaine, conduct which falls within

the definition of “drug trafficking offense.”

Stanley contends that we should interpret “sold” in her indictment to

encompass all of the alternative definitions provided in § 220.00(1), including

“offer to sell,” and she therefore argues that the indictment does not narrow her

offense of conviction to drug-trafficking conduct. Section 220.00(1) lists “to sell”

as one of the definitions of “sell.” In order to give the statute a non-circular

definition, the term “to sell,” as it is used within the statutory definition of“sell,”

must be given its ordinary meaning. Stanley’s indictment alleges that she

committed a violation of § 220.39[1] “as follows.” The indictment then alleges

that she “sold . . . cocaine.” Stanley has not demonstrated, on the basis of any

New York law or other evidence, that her indictment uses the term “sold” to

encompass the entire the statutory definition in § 220.00(1) instead ofto indicate

the statutory means by which she violated § 220.39[1]. Because she has not

done so, she has not demonstrated that the district court could have committed

any error that is “plain” or “obvious.” See United States v. Garcia-Arellano, 522

F.3d 477, 480 (5th Cir. 2008) (stating that error, for plain error analysis, must
No. 06-40981

3 Stanley argues that this court’s decisions after United States v. Booker, 543 U.S. 220

(2005), effectively reinstated the mandatory Guidelines system by entitling within-Guidelines

sentences to a presumption of reasonableness and requiring an articulation of the reasons for

a sentence outside the Guidelines. Stanley anticipated that the Supreme Court’s consideration

of Claiborne v. United States, 127 S.Ct. 551 (2006), and Rita v. United States, 127 S.Ct. 2456

(2007), indicated that the Court might overrule that regime. The Court did not do so. The

Supreme Court in Rita affirmed the use at the appellate level of a presumption that a sentence

within the correctly calculated Guidelines range is reasonable. 127 S.Ct. at 2463 (2007). This

court continues to apply such a presumption. 

6

be plain or obvious at the time of appellate consideration). We therefore affirm

the district court’s application of an enhancement under U.S.S.G. §

2L1.2(b)(1)(A)(i) in calculating Stanley’s advisory Guidelines range. 

B. 

Stanley argues that her within Guidelines sentence of 57 months of

imprisonment is unreasonable.3 Stanley contends that her sentence is

unreasonable because the district court failed to account for factors that should

have received consideration, gave undue weight to other factors, and made a

clear error of judgment in balancing the sentencing factors. Stanley also

contends thatthe district court did not sufficiently address the mitigation factors

she presented.

Stanley presented arguments in favor of a below-guideline sentence based

on her cultural assimilation into the United States, the fact that her prior

convictions were old and non-violent, her rehabilitation, her work history, and

the fact that her reason for returning to the United States was to convince her

elderly mother to return with her to Honduras.

When reviewing the reasonableness of a sentence, we must first ensure

that the district court committed no significant procedural error, such as failing

to calculate or properly calculate the Guidelines range, treating the Guidelines

as mandatory, failing to consider the 18 U.S.C. § 3553(a) sentencing factors,

basing a sentence on clearly erroneous facts, or failing to adequately explain the

chosen sentence. Gall v. United States, 128 S.Ct. 586, 597 (2007). If the
No. 06-40981

7

sentence is procedurally sound, we must then consider the substantive

reasonableness of the sentence under an abuse-of-discretion standard. Id. A

sentence within the Guidelines range is entitled to a presumption of

reasonableness. See, e.g., United States v. Cisneros-Gutierrez, 517 F.3d 751, 766

(5th Cir. 2008).

Prior to the Supreme Court’s decision in Rita, we held that if a district

courtimposes a sentence within the properly determined Guidelines range, little

explanation is required. See United States v. Mares, 402 F.3d 511, 519 (5th Cir.

2005). In Rita, the Court noted that, “when a judge decides simply to apply the

Guidelines to a particular case, doing so will not necessarily require lengthy

explanation.” 127 S.Ct. at 2468. The Court added that more than a brief

statement may be required when a district court is presented with nonfrivolous

arguments for a sentence outside the Guidelines. 127 S.Ct. at 2468-69.

Nevertheless, the Court concluded that the district court's reasons for rejecting

the defendant's § 3553(a) arguments for a non-Guidelines sentence in that case

were, although brief, legally sufficient. Id. at 2469. Specifically, the Court

noted that the record made clear that the judge listened to and considered the

arguments and evidence but simply found the circumstances insufficient to

warrant a sentence below the Guidelines range. Id. The judge said that the

range was not “inappropriate” and that a sentence at the bottom of the range

was “appropriate.” Id. The Court acknowledged that the judge might have said

more, but was not required to do so. Id.

In this case, the sentencing transcript reflects that the district court

listened to all of the concerns that Stanley raises on appeal and reviewed the

information in the presentencing report. The court specifically discussed the fact

that Stanley’s prior convictions were ten and fourteen years old and Stanley’s

proffered excuse that she entered illegally to help her mother. The court further

stated that, although it understood the hardship that separation from family
No. 06-40981

8

creates, a term of imprisonment is warranted based on all the evidence before

the court. Although the court’s explanation for its sentence is not lengthy, it is

comparable to the statement found sufficient in Rita, and therefore not

erroneous. There is no indication that the court treated the Guidelines as

mandatory or committed any other procedural error. 

Stanley has also failed to demonstrate that her sentence is substantively

unreasonable. The district court considered and rejected Stanley’s arguments

for a non-Guidelines sentence, sentencing her within the Guidelines range to a

term of 57 months of imprisonment. Because Stanley’s sentence is within the

Guidelines, it is entitled to a presumption of reasonableness that we see no

reason to disturb. 

IV.

For the foregoing reasons, the judgment of the district court is

AFFIRMED.