IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 16-51176

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

FRANCISCO JAVIER VEGA-CHAPARRO,

Defendant-Appellant

Appeal from the United States District Court

for the Western District of Texas

USDC No. 3:16-CR-1018-1

Before REAVLEY, PRADO, and GRAVES, Circuit Judges.

PER CURIAM:*

Francisco Javier Vega-Chaparro appeals the sentence imposed following 

his guilty plea conviction for illegal reentry. He appeals the district court’s 

application of a 16-level enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(i) (2015) 

to his sentence after finding that his prior conviction under Colorado Revised

Statutes § 18-18-405(1)(a) (2003) was a “drug trafficking offense” under the 

Sentencing Guidelines. In particular, Vega-Chaparro contends that § 18-18-

 

* 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.

United States Court of Appeals

Fifth Circuit

FILED

February 22, 2018

Lyle W. Cayce

Clerk

 Case: 16-51176 Document: 00514357996 Page: 1 Date Filed: 02/22/2018
No. 16-51176

2

405(1)(a) is not divisible under Mathis v. United States, 136 S. Ct. 2243 (2016), 

because it is overbroad and enumerates one offense with alternate methods of 

commission rather than different offenses. 

As Vega-Chaparro concedes, review is limited to plain error because he 

did not object to the enhancement in the district court. United States v. 

Mondragon-Santiago, 564 F.3d 357, 361 (5th Cir. 2009). Under this standard, 

Vega-Chaparro must show a clear or obvious error that affected his substantial 

rights. See Puckett v. United States, 556 U.S. 129, 135 (2009). If he makes 

such a showing, we have the discretion to correct the error but will do so only 

if it seriously affects the fairness, integrity, or public reputation of the 

proceedings. Id. 

The district court did not plainly err in imposing the § 2L1.2 sentencing 

enhancement. Recently, in United States v. Gomez, __ F. App’x __, 2017 WL 

3888298, **3-4 (5th Cir. Sept. 5, 2017), we assumed without deciding that the 

district court erred by not finding that the Colorado statute was indivisible.

After noting that there was no controlling authority on point and determining 

that an examination of Colorado law led to conflicting interpretations of the 

statute, we rejected on plain error review the same argument now raised by 

Vega-Chaparro. To rise to the level of plain error, a “legal error must be clear 

or obvious, rather than subject to reasonable debate.” United States v. Ellis, 

564 F.3d 370, 377-78 (5th Cir. 2009). Because Colorado law on the divisibility 

of § 18-18-405 remains unclear, Vega-Chaparro has not shown that the district 

court plainly erred in imposing the § 2L1.2 sentencing enhancement. See id.

at 377-78; see also United States v. Trejo, 610 F.3d 308, 319 (5th Cir. 2010)

(holding that a claim that is “novel” and “not entirely clear under the existing 

case authority” is “doom[ed] . . . for plain error.”).

AFFIRMED. 

 Case: 16-51176 Document: 00514357996 Page: 2 Date Filed: 02/22/2018