IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 09-50222

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff - Appellee

v.

ENRIQUE SANCHEZ-MONTES,

Defendant - Appellant

Appeal from the United States District Court

for the Western District of Texas

USDC No. 3:08-CR-2742-1

Before BARKSDALE, DENNIS, and OWEN, Circuit Judges.

PER CURIAM:

*

Enrique Sanchez-Montes appeals his within-guidelines sentence of 41

months’ imprisonment for illegal reentry following deportation, in violation of

8 U.S.C. § 1326. Calculating his Guidelines range at sentencing, the district

court applied a 16-level enhancement, pursuant to advisory Sentencing

Guideline § 2L1.2(b)(1)(A)(i), for a prior drug-trafficking offense. Sanchez

contends the Government failed to produce sufficient evidence establishing his

prior felony drug-trafficking conviction where the sentence imposed exceeded 13

United States Court of Appeals

Fifth Circuit

F I L E D

December 20, 2010

Lyle W. Cayce

Clerk

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.

Case: 09-50222 Document: 00511326301 Page: 1 Date Filed: 12/20/2010
No. 09-50222

months. In that regard, Sanchez contends his conviction for “possession with

intent to deliver”, conceded during sentencing, did not establish he had a prior

conviction involving an “intent to distribute” for purposes of applying the 16-

level enhancement.

Because Sanchez did not object in district court to the 16-level

enhancement, the issue is reviewed only for plain error. See United States v.

Gonzalez-Terrazas, 529 F.3d 293, 296 (5th Cir. 2008). To establish plain error,

Sanchez must show a clear or obvious error affecting his substantial rights. E.g.,

Puckett v. United States, 129 S. Ct. 1423, 1429 (2009).

Guideline § 2L1.2(b)(1)(A)(i) provides for a 16-level increase if the

defendant was deported after a felony-conviction drug-trafficking offense where

the sentence imposed exceeded 13 months. A “drug-trafficking offense” includes

dispensing a controlled substance with intent to distribute, with “distribute”

defined as delivering a controlled substance, and “delivery” defined as the actual,

constructive, or attempted transfer of a controlled substance. 21 U.S.C. §

802(11), (8); U.S.S.G. § 2L1.2 cmt. n.1(B)(iv).

Sanchez incorrectly asserts there is insufficient evidence to support his

prior Iowa felony-conviction for possession of cocaine with intent to deliver,

maintaining the only reference to the conviction was by his attorney in district

court. To the contrary, the presentence investigation report (PSR) referred to

Sanchez’ 1996 Iowa felony-conviction and included, as an addendum, the

charging instrument for that offense. See Shepard v. United States, 544 U.S. 13,

16 (2005) (holding charging documents constitute reliable evidence of prior

guilty-plea convictions). Further, as noted, at sentencing, Sanchez made no

objections to the PSR, and conceded: he had a 1996 felony-conviction for

possession with intent to deliver a controlled substance; and the Government

possessed the judgment to support the conviction.

With regard to Sanchez’ contention his prior offense does not qualify as a

“drug-trafficking offense” for purposes of the enhancement, Sanchez is in error.

2

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No. 09-50222

See United States v. Ford, 509 F.3d 714, 715 (5th Cir. 2007) (holding a conviction

for “possession with an intent to deliver” a controlled substance qualified as

basis for sentencing enhancement as “controlled substance offense” under

Guidelines). His offense clearly falls within the definition of a “drug-trafficking

offense” under Guideline § 2L1.2. See 21 U.S.C. § 802(11), (8); U.S.S.G. § 2L1.2

cmt. n.1(B)(iv). Accordingly, Sanchez has shown no error, much less plain error,

with respect to the 16-level enhancement. See also United States v. Ramirez,

557 F.3d 200, 204 (5th Cir. 2009); United States v. Fambro, 526 F.3d 836, 849-50

(5th Cir. 2008).

AFFIRMED.

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