IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 13-40157

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

LUIS PEREZ-MELGAREJO,

Defendant-Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 7:12-CR-1555-1

Before KING, DeMOSS, and GRAVES, Circuit Judges. 

PER CURIAM:*

Luis Perez-Melgarejo appeals the sentence imposed following his guilty 

plea conviction for being found unlawfully in the United States after

deportation in violation of 8 U.S.C. § 1326. He contends that the district court 

plainly erred when it enhanced his sentence based on a finding that his 2011

Missouri conviction for possession with intent to distribute, deliver, or sell 

more than five grams of marijuana was a felony drug trafficking offense for 

* 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

January 15, 2014

Lyle W. Cayce

Clerk

 

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No. 13-40157

purposes of U.S.S.G. § 2L1.2(b)(1)(A)(i). Relying on the Supreme Court’s 

decision in Moncrieffe v. Holder, 133 S. Ct. 1678 (2013), as well as our decision 

in United States v. Garza-Lopez, 410 F.3d 268 (5th Cir. 2005), Perez-Melgarejo 

argues that the Missouri statute under which he was convicted is broader than 

the drug trafficking offense definition set forth in the commentary to § 2L1.2 

because the statute criminalizes the possession of a small amount of marijuana 

with the intent to give it away or offer to give it away to another person for no 

remuneration. Because the state court documents did not narrow his 

conviction to a qualifying drug trafficking offense, he argues that the district 

court’s application of the § 2L1.2(b)(1)(A)(i) enhancement was a clear and 

obvious error. 

Perez-Melgarejo did not object to the § 2L1.2(b)(1)(A)(i) enhancement in 

the district court. Our review therefore is for plain error. See United States v. 

Villegas, 404 F.3d 355, 358 (5th Cir. 2005). To show plain error, PerezMelgarejo must show a forfeited error that is clear or obvious and that affects 

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 only 

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

proceedings. See id. 

Section 2L1.2(b)(1)(A)(i) provides that the offense level for unlawfully 

entering or remaining in the United States shall be increased by 16 levels if 

the defendant was deported after a conviction for a felony drug trafficking 

offense for which the sentence imposed exceeded 13 months, if the conviction 

receives criminal history points. § 2L1.2(b)(1)(A)(i). The commentary to 

§ 2L1.2 defines a drug trafficking offense as “an offense under federal, state, or 

local law that prohibits the manufacture, import, export, distribution, or 

dispensing of, or offer to sell a controlled substance . . . or the possession of a 

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controlled substance . . . with intent to manufacture, import, export, distribute, 

or dispense.” § 2L1.2, comment. (n.1(B)(iv)).

The state court documents provide that on April 1, 2011, PerezMelgarejo was convicted of possession with intent to distribute, deliver, or sell 

more than five grams of marijuana in violation of MO. ANN. STAT. § 195.211(1) 

and (3). For purposes of § 195.211, the term “distribute” means “to deliver 

other than by administering or dispensing a controlled substance.” MO. ANN.

STAT. § 195.010(12). The term “deliver” means “the actual, constructive, or 

attempted transfer from one person to another of drug paraphernalia or of a 

controlled substance, or an imitation controlled substance, whether or not 

there is an agency relationship, and includes a sale.” § 195.010(8). Finally, 

the term “sale” includes a “barter, exchange, or gift, or offer therefor, and each 

such transaction made by any person, whether as principal, proprietor, agent, 

servant or employee.” § 195.010(38).

In Garza-Lopez, we vacated the defendant’s sentence and remanded 

because the California statute at issue criminalized activity that did not fall 

within the definition of a drug trafficking offense under § 2L1.2. Garza-Lopez, 

410 F.3d at 274-75. Specifically, we concluded that the statute was broader 

than the drug trafficking offense definition set forth in the commentary to 

§ 2L1.2 because the statute criminalized “the transportation of a controlled 

substance for personal use and offers to transport, sell, furnish, administer, or 

give away a controlled substance.” Id. at 274. Because the district court did 

not have appropriate documents upon which it could have relied on to 

determine whether the defendant had been convicted of a drug trafficking 

offense, we held that the district court’s application of the § 2L1.2(b)(1)(A)(i) 

enhancement amounted to plain error. Id. at 275.

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After our decision in Garza-Lopez, the United States Sentencing 

Commission amended § 2L1.2’s definition of a drug trafficking offense to 

include offers to sell a controlled substance. § 2L1.2, comment. (n.1(B)(iv)); 

United States v. Marban-Calderon, 631 F.3d 210, 211-12 (5th Cir. 2011). We 

have not conclusively answered the question of whether a conviction for giving 

away or offering to give away a controlled substance constitutes a drug 

trafficking offense under the post-2008 version of § 2L1.2. Further, the 

Supreme Court’s decision in Moncrieffe addressed whether an alien’s Georgia 

conviction for possession with intent to distribute 1.3 grams of marijuana 

qualified as an aggravated felony for purposes of 8 U.S.C. § 1101(a)(43)(B), 

Moncrieffe, 133 S. Ct. at 1683-84, and we have yet to address Moncrieffe’s

effect, if any, on whether a conviction for sharing a small amount of marijuana 

for no remuneration qualifies as a drug trafficking offense under 

§ 2L1.2(b)(1)(A)(i). Because the issue is subject to reasonable debate and the 

error is not readily apparent, the district court’s application of the 

§ 2L1.2(b)(1)(A)(i) enhancement, if erroneous, did not rise to the level of a clear 

or obvious error. See United States v. Ellis, 564 F.3d 370, 377-78 (5th Cir. 

2009). Accordingly, Perez-Melgarejo cannot show plain error, and the district 

court’s judgment is AFFIRMED. 

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