UNPUBLISHED

UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT 

No. 06-4950

UNITED STATES OF AMERICA, 

 Plaintiff – Appellee, 

 v. 

GEOMAR QUINTERO, a/k/a Solis Delqui, 

 Defendant – Appellant. 

Appeal from the United States District Court for the Western 

District of North Carolina, at Charlotte. Robert J. Conrad, 

Jr., Chief District Judge. (3:06-cr-00024) 

Argued: September 25, 2008 Decided: October 17, 2008 

Before WILKINSON, MICHAEL, and SHEDD, Circuit Judges. 

Affirmed by unpublished per curiam opinion. 

ARGUED: Matthew Segal, FEDERAL DEFENDERS OF WESTERN NORTH 

CAROLINA, INC., Asheville, North Carolina, for Appellant. Amy 

Elizabeth Ray, OFFICE OF THE UNITED STATES ATTORNEY, Asheville, 

North Carolina, for Appellee. ON BRIEF: Cecilia Oseguera, 

FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Charlotte, 

North Carolina, for Appellant. Gretchen C. F. Shappert, United 

States Attorney, Charlotte, North Carolina, for Appellee. 

Unpublished opinions are not binding precedent in this circuit. 
2 

PER CURIAM: 

 Geomar Quintero pleaded guilty to one count of illegal 

reentry into the United States by a convicted felon in violation 

of 8 U.S.C. §§1326(a) and (b)(2). He received a 16-level 

sentence enhancement pursuant to U.S. Sentencing Guidelines 

Manual §2L1.2(b)(1)(A) based on his previous deportation after 

conviction of a “drug trafficking offense” for which the 

sentence imposed exceeded 13 months. The defendant appeals this 

enhancement. He argues that the sentencing court erred in 

finding that his prior conviction qualified as a “drug 

trafficking offense” under §2L1.2 and an “aggravated felony” 

under §1326(b)(2). He also argues that the sentencing court’s 

use of a prior conviction to enhance his sentence violated his 

Sixth Amendment right to a jury trial. We reject these 

arguments and affirm the sentence. 

I. 

 On March 15, 2006, the defendant pleaded guilty to the 

charge of illegal reentry into the United States by a convicted 

felon in violation of 8 U.S.C. §§1326(a) and (b)(2). At the 

sentencing hearing, the court found an offense level of 21 based 

on the presentence report which calculated a base offense level 

of eight, a 16-level enhancement pursuant to §2L1.2(b)(1)(A) for 

previous deportation after conviction of a “drug trafficking 
3 

offense,” and a three-level reduction for acceptance of 

responsibility. The defendant objected to the 16-level 

enhancement on the ground that his 1996 conviction under 

California Health and Safety Code §11352(a) did not constitute a 

“drug trafficking offense.” Specifically, the defendant argued 

that because he pleaded no contest to §11352(a), which covers 

some conduct that is a “drug trafficking offense” and some 

conduct that is not a “drug trafficking offense,” he was not 

necessarily convicted of committing a “drug trafficking 

offense.” The defendant also objected to the documents 

proffered by the government to narrow the charge. The district 

court agreed that the statute was too broad to categorically 

qualify as a “drug trafficking offense,” but held that the plea 

colloquy and other judicially noticeable documents established 

that the defendant had pleaded no contest to the sale of cocaine 

base which was indisputably a “drug trafficking offense.” The 

court found that the defendant’s criminal history category was 

II and the corresponding Guidelines’ range for an offense level 

of 21 was 41 to 51 months’ imprisonment. The court sentenced 

the defendant to 41 months’ imprisonment. Quintero now appeals 

this sentence. 
4 

II. 

 Quintero claims that the sentencing court erred in 

enhancing his sentence pursuant to U.S.S.G. §2L1.2 based on a 

determination that his 1996 conviction for violating §11352(a) 

was a “drug trafficking offense.” We review the sentencing 

court’s determination de novo because it is a question of law. 

See United States v. Chacon, 533 F.3d 250, 253 (4th Cir. 2008). 

 According to U.S.S.G. §2L1.2(b)(1)(A), a 16-level 

enhancement is warranted for illegal reentry in violation of 8 

U.S.C. §1326 if the defendant was previously deported after “a 

conviction for a felony that is (i) a drug trafficking offense 

for which the sentence imposed exceeded 13 months.” U.S.S.G. 

§2L1.2(b)(1)(A). Application Note 1(B)(iv) 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 a 

counterfeit substance)” or possession with intent to do the 

same. U.S.S.G. §2L1.2 cmt. n.1(B)(iv). 

 The parties argue extensively over whether §11352(a) is a 

“drug trafficking offense” on its face and whether the extended 

list of verbs in §11352(a) fit within the definition of “drug 

trafficking offense” in U.S.S.G. §2L1.2 Application Note 

1(B)(iv). We see no need to explore this question because the 

plea colloquy so clearly establishes that the defendant’s 1996 
5 

conviction was for selling cocaine base which unquestionably 

constitutes a “drug trafficking offense.” 

 The sentencing court did not err in relying on the plea 

colloquy. Shepard v. United States permits courts to look to 

elements “necessarily admitted” by the defendant in a prior 

guilty plea to determine whether a prior conviction qualifies 

for a sentence enhancement. 544 U.S. 13, 16 (2005). 

Specifically, courts are permitted to examine the “statutory 

definition, charging document, written plea agreement, 

transcript of plea colloquy, and any explicit factual finding by 

the trial judge to which the defendant assented.” Id. 

 The plea colloquy makes clear that the defendant’s 1996 

conviction under §11352(a) was for the sale of cocaine base. On 

January 12, 1996, the defendant pleaded no contest to one count 

of violating §11352(a) and was sentenced to five years’ 

imprisonment. There are two clear instances in the plea 

colloquy where the defendant admitted that he was pleading no 

contest to the sale of cocaine base. First, the court began the 

plea hearing by stating: “Charged with selling cocaine base on 

July 12, 1995 in violation of §11352(a) of the Health and Safety 

Code. Do you understand that charge, Sir?” The defendant 

responded “Yes.” Second, the court later asked: “How do you 

plead to the charge that you violated Health and Safety Code 

§11352(a), sale of cocaine base?” The defendant responded “No 
6 

contest.” These statements establish that the defendant pleaded 

no contest to the sale of cocaine base. 

 The defendant argues that the sentencing court was not 

permitted to consider the plea colloquy because the defendant 

did not confirm the factual basis for the plea as required by 

Shepard, and therefore the facts were not “necessarily admitted” 

by the defendant. See Shepard, 544 U.S. at 26 (permitting 

courts to look to plea colloquies “in which the factual basis 

for the plea was confirmed by the defendant”). We find no merit 

in this argument. As discussed above, the defendant directly

admitted that he was pleading no contest to the “sale of cocaine 

base” and “selling cocaine base.” Furthermore, during the plea 

colloquy defendant’s counsel stipulated to a factual basis after 

the defendant made these statements. Therefore, the sentencing 

court did not err in relying on the plea colloquy to determine 

that the defendant’s 1996 conviction was for the sale of cocaine 

base. 

 The sale of cocaine base undeniably qualifies as a “drug 

trafficking offense” under U.S.S.G. §2L1.2 because it is the 

“distribution, or dispensing of a controlled substance.” See

U.S.S.G. §2L1.2 cmt. n.1(B)(iv). Therefore, the sentencing 

court was correct to conclude that the defendant’s 1996 

conviction was a “drug trafficking offense” and did not err in 

applying a 16-level enhancement under §2L1.2(b)(1)(A). 
7 

 We need not consider the defendant’s arguments with respect 

to the admissibility of the other documents. Any possible 

resulting errors would be harmless in light of the fact that the 

plea colloquy unequivocally establishes that the defendant’s 

1996 conviction was a “drug trafficking offense.”* 

III. 

 The defendant also claims that the sentencing court’s use 

of his prior conviction to enhance his sentence violates his 

Sixth Amendment right to a jury trial. The defendant makes this 

argument merely to preserve it for appeal because, as the 

defendant properly concedes, current Supreme Court doctrine 

forecloses his argument. See Almendarez-Torres v. United 

States, 523 U.S. 224 (1998) (holding that the Constitution does 

not require that prior convictions be alleged in an indictment 

for a guilty plea or proven to a jury beyond a reasonable doubt 

in order to be the basis of a sentence enhancement); see also

 *

 The defendant also claims, apparently for the first time 

on appeal, that the district court erred in applying a statutory 

sentencing enhancement pursuant to 8 U.S.C. §1326(b)(2) based on 

a determination that his 1996 conviction was an “aggravated 

felony.” For the reasons stated above, the district court did 

not err in relying on the plea colloquy to determine that the 

defendant’s 1996 conviction was for the sale of cocaine base. 

The sale of cocaine base is unquestionably an “aggravated 

felony” which is defined to include “illicit trafficking in a 

controlled substance.” 8 U.S.C. §1101(a)(43)(B). 
8 

Apprendi v. New Jersey, 530 U.S. 466, 490 (2000) (“Other than 

the fact of a prior conviction, any fact that increases the 

penalty for a crime beyond the prescribed statutory maximum must 

be submitted to a jury, and proved beyond a reasonable doubt.”) 

(emphasis added). Despite some questioning of the continued 

vitality of the prior conviction exception, see Shepard, 544 

U.S. at 27-28 (Thomas, J., concurring in part and concurring in 

the judgment), Almendarez-Torres is still good law and this 

court is bound to follow it. See United States v. Cheek, 415 

F.3d 349 (4th Cir. 2005). Therefore, we reject the defendant’s 

argument. 

IV. 

 For the foregoing reasons, we affirm the sentence. 

AFFIRMED