IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 06-11276

Summary Calendar

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

ABEL GARCIA-ARELLANO

Defendant-Appellant

Appeal from the United States District Court

for the Northern District of Texas

Before WIENER, GARZA, and BENAVIDES, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

Abel Garcia-Arellano (“Garcia”) appeals the sentence imposed for his

unlawful reentry following removal from the United States. Garcia asserts that

the district court plainly erred by enhancing his sentence based on the

determination that his prior Texas conviction for unlawful delivery of cocaine

qualifies as a drug-trafficking offense under the sentencing guidelines. Garcia

also asserts that the felony and aggravated felony provisions of 8 U.S.C. §

1326(b) are unconstitutional. We affirm the sentence imposed by the district

court.

United States Court of Appeals

Fifth Circuit

F I L E D

March 25, 2008

Charles R. Fulbruge III

Clerk
No. 06-11276

2

I

Garcia pleaded guilty, without a written agreement, to being an alien

found in the Untied States after having been removed. See 8 U.S.C. § 1326(a),

(b)(2). Pursuant to UNITED STATES SENTENCING GUIDELINES MANUAL (“USSG”)

§ 2L1.2(a) (2005), the presentence investigation report (“PSR”) recommended a

base offense level of 8 for Garcia. Based on Garcia’s prior Texas conviction for

“delivery of a controlled substance” under TEX. HEALTH & SAFETY CODE ANN. §

481.112(a), the PSR recommended a 12-level enhancement to Garcia’s offense

level under USSG § 2L1.2(b)(1)(B), because Garcia’s prior conviction qualified

as a “drug trafficking offense.” The PSR also provided for a three-level reduction

for acceptance of responsibility. An offense level of seventeen coupled with

Garcia’s criminal history category of II resulted in a guidelines range of 27-33

months imprisonment.

Garcia objected to the PSR’s assessment of the statutory maximum

incarceration and supervised release periods, noting that recent rulings have

evidenced the Supreme Court’s intent to overrule its holding in AlmendarezTorres v. United States, 523 U.S. 224 (1998). The district court overruled this

objection. At the sentencing hearing, Garcia’s counsel stated that there were no

objections to the 12-level enhancement, but asked the courtto consider imposing

a sentence at or below the low end of the guidelines range. In seeking lenience,

counsel argued that Garcia’s prior conviction involved a small amount of drugs,

specifically stating that “although it’s a drug trafficking crime, it’s a $20 hand-tohand transaction with an undercover officer.”

The district court sentenced Garcia to 30-months in prison and two-years’

supervised release. At sentencing, the record did not include any proof of

Garcia’s prior conviction other than the PSR and counsel’s statements during the

sentencing hearing. Garcia filed a timely notice of appeal and argues now that:

(1) the district court erred in applying the 12-level enhancement because his

Texas conviction does not fall within the guidelines’ definition of a “drug
No. 06-11276

1 For this reason, we need not address whether the district court erred in relying solely

on the PSR and counsel’s statements at the sentencing hearing.

3

trafficking offense”; and (2) Section 1326(b) is unconstitutional in light of

Apprendi v. New Jersey, 530 U.S. 466 (2000), in that the statute treats prior

felony and aggravated felony convictions as sentencing factors.

While the district court relied only upon the PSR and counsel’s statements,

the record on appeal has been supplemented to include a number of documents

related to Garcia’s prior conviction. Garcia supplemented the record with a copy

of his Texas indictment. The government supplemented the record with copies

of Garcia’s state court judgment and Garcia’s judicial confession. 

II

Garcia correctly concedes that because he did not object to the district

court’s application of § 2L1.2; review is for plain error only. See United States

v. Gracia-Cantu, 302 F.3d 308, 310 (5th Cir. 2002). Plain error exists when the

district court: (1) commits error, (2) that is plain or obvious, and (3) that error

affects the substantial rights of the defendant. See United States v. Marek, 238

F.3d 310, 315 (5th Cir. 2001). If these three prongs are met, this court will only

exercise its sound discretion to correct the error if it finds that the error

“seriously affects the fairness, integrity, or public reputation of judicial

proceedings.” Id. We analyze the district court’s error and the plainness of any

error atthe time of appellate consideration. See United States v. Martinez-Vega,

471 F.3d 559, 561 (5th Cir. 2006) (citing Johnson v. United States, 520 U.S. 461

(1997)). Therefore, we must determine whether the district court plainly erred

in imposing the sentence enhancement based on the record before us as

supplemented with the state court documents concerning Garcia’s conviction.

See id. at 561-62 (analyzing district court’s imposition of enhancement for plain

error based on appellate record as supplemented to include state court

documents of conviction).1
No. 06-11276

2 The commentary to section 2L1.2 defines “drug trafficking offense” as “an offense

under federal, state, or local law that prohibits the manufacture, import, export, distribution

or dispensing of a controlled substance. . . or the possession of a controlled substance. . . with

intent to manufacture, import, export, distribute or dispense.” USSG § 2L1.2 cmt n.1(B)(iv).

4

The Texas Health and Safety Code defines the term “deliver” broadly to

include, inter alia, an offer to sell a controlled substance. TEX.HEALTH &SAFETY

CODE ANN. § 481.002(8). Based on this broad definition, we have held that §

481.112 encompasses “both conduct that does constitute a drug trafficking

offense (trafficking cocaine) and conduct that does not (offering to sell cocaine).”

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

States v. Gonzales, 484 F.3d 712, 714-15 (5th Cir. 2007).2 Garcia contends that

the enhancement was improper because the court could not definitively

determine whether his conviction was for trafficking, or simply for an offer to

sell. Because the statute provides multiple ways to violate its terms, we must

determine whether Garcia’s offense of conviction under § 481.112 for unlawful

delivery falls within the guidelines definition. In making this determination, a

court may look beyond the statute itself to “the terms of the charging document,

the terms of a plea agreement or transcript of colloquy between judge and

defendant in which the factual basis for the plea was confirmed by the

defendant, or to some other comparable judicial record of this information.”

Shepard v. United States, 544 U.S. 13, 26 (2005) (emphasis added); see United

States v. Garza-Lopez, 410 F.3d 268, 274 (5th Cir. 2005).

Garcia’s indictment and state court judgment fall within the scope of

documents a court may consider under Shepard. See Shepard, 544 U.S. at 26

(listing charging document); United States v. Ford, 509 F.3d 714, 715 (5th Cir.

2007) (noting that district court had before it the Texas state indictment and

judgment). We hold today that a written judicial confession also constitutes a

“comparable judicial record” under Shepard, and that it may be considered in

determining whether a defendant’s prior conviction constitutes a drug trafficking
No. 06-11276

5

offense under the guidelines. A Texas judicial confession is an admission made

in the course of judicial proceedings by a party, “such as a confession made to an

examining court before the trial.” Dinnery v. State, 592 S.W. 2d 343, 352 (Tex.

Crim. App. 1979). Under Texas law, a judicial confession which stipulates to the

factual content in an indictment provides a strong enough evidentiary basis to

support a judgment of conviction on the charge without the need for any

corroborating evidence. See id. Also, Texas courts have recognized written

judicial confessions as providing necessary proof of prior convictions for state

sentence enhancement purposes. See, e.g., Walls v. Texas, No. 06-04-00009-CR,

2004 WL 1440619 at *4 (Tex. App.-Texarkana June 29, 2004) (unpublished).

Accordingly, we regard a written judicial confession as the type of reliable and

accurate judicial record the Shepard court indicated that a federal court may

rely upon in an effort to determine the nature of the Texas offense to which

Garcia previously pleaded guilty. Cf. United States v. Neri-Hernandes, 504 F.3d

587, 591-92 (finding that New York Certificates of Disposition have sufficient

indicia of reliability to act as judicial records of a defendant’s offense of

conviction). Therefore, we consider the indictment, judgment, and judicial

confession to determine whether Garcia’s offense of conviction constitutes a drug

trafficking offense.

Garcia’s indictment charges him with knowing and intentional delivery,

to-wit: “actua[l] transfer, constructiv[e] transfer and offer to sell a controlled

substance, to-wit: COCAINE, in an amount by aggregate weight, including any

adulterants or dilutants, of less than 1 gram to S. HARRIS.” The judgment

states simply that the offense of conviction was unlawful delivery of a controlled

substance. While the indictment charges facts in the conjunctive that would

meet the definition of a drug trafficking offense, the indictment’s conjunctive

charge alone does not require that Garcia pleaded guilty to the facts in the

conjunctive, since each charge individually could sustain a conviction for delivery

under § 481.112. See Morales-Martinez, 496 F.3d at 358-360 (noting that a
No. 06-11276

6

Texas conviction for unlawful delivery may be sustained solely upon proof of an

offer to sell, even when the indictment charges further unlawful conduct in the

conjunctive).

Were we confined to the indictment and judgment alone, Garcia’s sentence

enhancement would be improper. However, in Garcia’s case, the judicial

confession clears up any ambiguity presented by the indictment and judgment.

In his written judicial confession, Garcia confesses that he did “knowingly and

intentionally deliver, to-wit, actually transfer, constructively transfer and offer

to sell a controlled substance.” (emphasis added). He also confessed that he

“committed the offense with which [he] stand[s] charged exactly as alleged in the

indictment in this case.” Because Garcia’s confession establishes that he

possessed, transferred and offered to sell a controlled substance, his prior

conviction qualifies as a drug trafficking offense under the guidelines. As a

result, Garcia has not shown that the district court’s enhancement constitutes

error, plain or otherwise. Because we find no error, we need not reach the

remaining elements in our plain error analysis.

In light of Apprendi v. New Jersey, 530 U.S. 466 (2000), Garcia challenges

the constitutionality of § 1326(b)’s treatment of prior felony and aggravated

felony convictions as sentencing factors rather than elements of the offense that

must be found by a jury. This argument is foreclosed by Almendarez-Torres v.

United States, 523 U.S. 224, 235 (1995). See United States v. Pineda-Arrellano,

492 F.3d 624, 625 (5th Cir. 2007), cert. denied, 2008 WL 59441 (Jan. 7, 2008)

(No. 07-6202).

For the foregoing reasons, we AFFIRM the sentence imposed by the

district court.