IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 08-30192

Summary Calendar

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

EDUARDO PILLADO-CHAPARRO, also known as Eduardo

Martinez-Gonzalez

Defendant-Appellant

Appeal from the United States District Court

for the Middle District of Louisiana

Before DAVIS, GARZA and PRADO, Circuit Judges.

PER CURIAM:

Eduardo Pillado-Chaparro (Pillado) pleaded guilty to illegal reentry into

the United States after previously being deported, in violation of 8 U.S.C. § 1326.

The presentence report (PSR) assigned Pillado a base offense level of eight for

violating § 1326. His base offense level was enhanced by 16 levels pursuant to

U.S.S.G. § 2L1.2(b)(1)(A)(i) because he had a prior 21 U.S.C. § 843(b) conviction

for using a telephone to facilitate a conspiracy to distribute marijuana “and/or”

cocaine, a “drug trafficking offense.” Pillado received three levels of credit for

acceptance of responsibility, for a total offense level of 21. With a criminal

history category of II, the advisory guidelines range was 41 to 51 months of

imprisonment. 

United States Court of Appeals

Fifth Circuit

F I L E D

September 17, 2008

Charles R. Fulbruge III

Clerk
No. 08-30192

2

Pillado argues that the district court erred in imposing a 16-level

enhancement under § 2L1.2(b)(1)(A)(i) based on his § 843(b) conviction,

contending that a § 843(b) conviction does not constitute a “drug trafficking

offense” under the guideline. We review de novo the district court’s

interpretation and application of the guideline. United States v. Villegas, 404

F.3d 355, 359 (5th Cir. 2005).

Section 2L1.2 provides for a 16-level increase in the base offense level for

defendants convicted of illegal reentry if the defendant has previously been

convicted of “a drug trafficking offense for which the sentence imposed exceeded

13 months.” § 2L1.2(b)(1)(A)(i). “Drug trafficking offense” is defined as follows:

“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.” § 2L1.2, cmt. (n.1(B)(iv)). 

We employ the categorical approach set forth in Taylor v. United States,

495 U.S. 575, 602, (1990), to determine whether a prior conviction qualifies as

a drug trafficking offense under § 2L1.2. United States v. Rodriguez, 523 F.3d

519, 524 (5th Cir.), petition for cert. filed (No. 08-5101) (June 30, 2008). In so

doing, we look to the elements of the prior offense, rather than to the facts

underlying the conviction. Id. If the statute of conviction contains multiple

disjunctive sections which prohibit conduct that will support a sentence

enhancement and other conduct that will not, we may look to, inter alia, the

charging paper to determine which section applies to the defendant’s conviction.

Id. A court may not, however, look to the PSR’s characterization of the offense

to make its determination regarding the propriety of the enhancement. United

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

The issue whether a § 843(b) conviction constitutes a drug trafficking

offense under § 2L1.2(b)(1)(A)(i) is res nova in this circuit. The Eleventh Circuit

was the first of four circuits to address the issue and hold that a prior conviction
No. 08-30192

1 Section 4B1.2 defines “controlled substance offense” as “an offense under

federal or state law, punishable by imprisonment for a term exceeding one year,

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.” § 4B1.2(b). 

3

for use of a communication facility meets the definition of “drug trafficking

offense” and supports the 16-level enhancement in § 2L1.2(b)(1)(A). See United

States v. Orihuela, 320 F.3d 1302, 1305 (11th Cir. 2003); see also United States

v. Jimenez, __ F. 3d. __, No. 2008 WL 2813046, **1-4 (9th Cir. July 23, 2008);

United States v.Zuniga-Guerrero, 460F.3d 733, 739 (6th Cir. 2006), cert. denied,

127 S. Ct. 1011 (2007); United States v. Duarte, 327 F.3d 206, 207 (2d Cir. 2003).

We find Orihuela persuasive and now join our sister circuits in holding that a

§ 843(b) conviction constitutes a “drug trafficking offense” under

§ 2L1.2(b)(1)(A)(i). 

In Orihuela, the court analogized the definition of “drug trafficking

offense” with the definition of “controlled substance offense” under the career

criminal enhancement provision in § 4B1.2(b), noting that § 4B1.2(b) defines the

term “controlled substance offense”1in substantially the same way as § 2L1.2

defines the term “drug trafficking offense” and, thus, decisions interpreting

§ 4B1.2(b) would therefore be analogous authorities. 320 F.3d at 1304; see also

United States v. Le, 512 F.3d 128, 135 & n.3 (5th Cir. 2007) (recognizing that

cases discussing § 4B1.2(b)’s definition of “controlled substance offense” and

§ 2L1.2’s definition of “drug trafficking offense” are cited interchangeably

because the language is identical), petition for cert filed (No. 07-10662) (Apr. 28,

2008). The court noted that several circuits had recognized that telephone

facilitation offenses were controlled substance offenses under § 4B1.2(b) and that

the Sentencing Commission had codified these findings in U.S.S.G. App. C,

Amend. No. 568 (1997). Oriheula, 320 F.3d at 1304. It also determined that

because a § 843(b) offense involves the facilitation of an underlying controlled
No. 08-30192

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substance offense, it results in the offender’s aiding and abetting of the

underlying offense, which thereby constitutes engaging in a controlled substance

offense. Id. at 1304-05; cf. United States v. Mankins, 135 F.3d 946, 949 (5th Cir.

1998) (holding that an element of a § 843(b) offense is the defendant’s

commission of an independent drug crime or facilitation of such a crime). 

Pillado’s indictment clearly charged that he facilitated the commission of an

independent drug crime in violation of § 843(b). Accordingly, the district court’s

imposition of the 16-level enhancement was a proper interpretation and

application of the Guidelines. 

Pillado additionally argues, for the first time on appeal, that in applying

the enhancement, the district court erred in adopting the probation officer’s

response to his sentencing objection and, additionally, that the district court

erred in relying on the indictment and PSR as factual bases for the

enhancement. Review of these arguments is for plain error only. United States

v. Mares, 402 F.3d 511, 520 (5th Cir. 2005). The facts charged in the applicable

paragraph of the indictment are plainly sufficient to support the enhancement;

thatPillado facilitated the commission of an independent drug crime, conspiracy

to distribute marijuana and cocaine. See Mankins, 135 F.3d at 949. He has

therefore shown no error on the part of the district court in this regard. 

Pillado also has not shown thatthe district court plainly erred in adopting

the probation officer’s response to his sentencing objection, which response

analogized the definition of “drug trafficking offense” in § 2L1.2 with the

definition of “controlled substance offense” in § 4B1.2(b). As previously

discussed, § 4B1.2(b)’s definition of “controlled substance offense” is the same

language used in the definition of “drug trafficking offense” under § 2L1.2, cmt.

(n.1(B)(iv)), and, therefore, cases discussing these definitions are cited

interchangeably. See Le, 512 F.3d at 135 & n.3. 

To the extent that the district court relied on the PSR in support of the

enhancement, such reliance constituted error. Garza-Lopez, 410 F.3d at 274.
No. 08-30192

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Nevertheless, because the indictment alone provided a sufficient basis for the

enhancement, the error did not affect Pillado’s substantial rights because he

suffered no prejudice therefrom. Therefore, he has not demonstrated reversible

plain error. See Mares, 402 F.3d at 520-21. 

For the foregoing reasons, the judgment of the district court is

AFFIRMED.