IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-40226

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff - Appellee

v.

OSCAR GARCIA-HERNANDEZ,

Defendant - Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 2:13-CR-865-1

Before BARKSDALE, DENNIS, and SOUTHWICK, Circuit Judges.

PER CURIAM:*

Oscar Garcia-Hernandez pleaded guilty to being found unlawfully in the 

United States following deportation, in violation of 8 U.S.C. § 1326. He was 

sentenced within the applicable advisory sentencing range under the 

Sentencing Guidelines to 37 months’ imprisonment. 

Garcia challenges the district court’s applying an eight-level 

enhancement for his 2002 Illinois conviction for possession of cocaine, with 

 

* 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

August 24, 2015

Lyle W. Cayce

Clerk

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No. 14-40226

2

intent to deliver, which the court characterized as a “drug trafficking offense”

under Guideline § 2L1.2(b)(1)(B). He also asserts: the Illinois offense is not 

an “aggravated felony” under 8 U.S.C. § 1101(a)(43)(B); and, therefore, the 

court erred in entering judgment against him under 8 U.S.C. § 1326(b)(2).

Although post-Booker, the Guidelines are advisory only, and a properly 

preserved objection to an ultimate sentence is reviewed for reasonableness 

under an abuse-of-discretion standard, the district court must still properly 

calculate the advisory Guidelines-sentencing range for use in deciding on the 

sentence to impose. Gall v. United States, 552 U.S. 38, 51 (2007). In that 

respect, for issues preserved in district court, its application of the Guidelines 

is reviewed de novo; its factual findings, only for clear error. E.g., United States 

v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008).

As Garcia concedes, however, he did not raise these issues in district 

court; accordingly, review is only for plain error. E.g., United States v. 

Broussard, 669 F.3d 537, 546 (5th Cir. 2012). Under that standard, Garcia

must show a forfeited plain (clear or obvious) error that affected his substantial 

rights. Puckett v. United States, 556 U.S. 129, 135 (2009). If he does so, we 

have the discretion to correct the error, but should do so only if it seriously 

affects the fairness, integrity, or public reputation of the proceedings. Id.

In his first point of error, Garcia asserts the Illinois offense does not 

qualify as a “drug trafficking offense”, U.S.S.G. § 2L1.2(b)(1)(B), because the 

Illinois statute criminalizes the giving away of drugs without remuneration 

and, therefore, defines “drug trafficking offense” more broadly than the 

Guideline. United States v. Martinez-Lugo, 782 F.3d 198, 204-05 (5th Cir.),

petition for cert. filed (23 June 2015) (No. 14-10355), however, forecloses this 

contention. As a result, Garcia has not demonstrated the court plainly erred

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in applying the Guideline § 2L1.2(b)(1)(B) enhancement based on his prior 

Illinois conviction. 

Regarding Garcia’s second contention (the court erred in sentencing him 

under 8 U.S.C. § 1326(b)(2) (being previously removed following a conviction 

for an aggravated felony)), it is not necessary to decide, under the plain-error 

standard, whether the Illinois offense of possession of a controlled substance 

with intent to deliver constitutes an aggravated felony under 8 U.S.C.

§ 1101(a)(43)(B). Instead, Garcia’s sentence may be affirmed because, prior to 

his removal, he was convicted of the Illinois offense of unlawful use of a firearm 

by a felon, which qualifies as an aggravated felony under 8 U.S.C.

§ 1101(a)(43)(E)(ii). See Nieto-Hernandez v. Holder, 592 F.3d 681, 685-86 (5th 

Cir. 2009); see also United States v. Ho, 311 F.3d 589, 602 n.12 (5th Cir. 2002) 

(stating judgment may be affirmed on any basis appearing in the record). 

AFFIRMED.

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