1

The Honorable Ralph R. Erickson, Chief Judge, United States District Court

for the District of North Dakota, sitting by designation.

2

The Honorable Laurie Smith Camp, United States District Judge for the

District of Nebraska. 

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 10-3263

___________

United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the 

* District of Nebraska. 

Jesus Benitez-De Los Santos, also * 

known as Ruben Salina-Castro, *

*

Appellant. * 

___________

Submitted: May 13, 2011

Filed: August 18, 2011

___________

Before MURPHY and COLLOTON, Circuit Judges, and ERICKSON,1

 District Judge.

___________

COLLOTON, Circuit Judge.

Jesus Benitez-De Los Santos pleaded guilty to illegal reentry into the United

States after deportation, in violation of 8 U.S.C. § 1326(a) and (b)(2). The district

court2

 applied a twelve-level specific offense characteristic to Benitez-De Los
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Santos’s advisory sentencing guideline range pursuant to USSG § 2L1.2(b)(1)(B),

calculated his guideline range as 30 to 37 months’ imprisonment, and sentenced him

to 30 months’ imprisonment. Benitez-De Los Santos appeals his sentence, and we

affirm.

The presentence investigation report prepared after the guilty plea

recommended that a prior conviction under California Health & Safety Code § 11351

warranted a twelve-level increase to Benitez-De Los Santos’s base offense level under

USSG § 2L1.2(b)(1)(B). This section applies to a defendant who has been previously

deported after sustaining “a conviction for a felony drug trafficking offense for which

the sentence imposed was 13 months or less.” Benitez-De Los Santos objected to the

enhancement. The district court determined that the specific offense characteristic

applied, and thus calculated the guideline range as 30 to 37 months’ imprisonment.

Benitez-De Los Santos appeals the court’s application of the guidelines and the

substantive reasonableness of the ultimate sentence.

We review the district court’s interpretation and application of the guidelines

de novo. United States v. Vinton, 631 F.3d 476, 484 (8th Cir. 2011). Under § 2L1.2,

a “‘[d]rug trafficking offense’ means an offense under federal, state, or local law that

prohibits the . . . possession of a controlled substance (or a counterfeit substance) with

intent to . . . distribute.” USSG § 2L1.2, comment. (n.1(B)(iv)). To determine

whether an offense of conviction meets this definition, we apply a categorical

approach. See United States v. Sanchez-Garcia, 642 F.3d 658, 661 (8th Cir. 2011).

In Shepard v. United States, 544 U.S. 13 (2005), the Supreme Court explained that the

categorical approach generally prohibits the sentencing court “from delving into

particular facts disclosed by the record of conviction, thus leaving the court normally

to look only to the fact of conviction and the statutory definition of the prior offense.”

Id. at 17 (internal quotation omitted).
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If the statute of conviction encompasses both conduct that qualifies for a

sentencing enhancement, and other conduct that does not, then the statute is

considered “overinclusive,” and the court must apply a “modified categorical

approach” to determine which portion of the statute was the basis for a conviction.

Vinton, 631 F.3d at 484. In determining whether a plea necessarily rested on facts that

qualify the conviction for an enhancement, the court may refer 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 comparable judicial record of this information.” Shepard, 544

U.S. at 26 (emphasis added).

Benitez-De Los Santos asserts that because § 11351 prohibits the possession for

sale of some substances that are not “controlled substances” under the Controlled

Substances Act, it is overinclusive. Assuming that § 11351 is in fact overinclusive,

even though § 2L1.2 does not refer to the CSA, see USSG § 2L1.2, comment.

(n.1(B)(iv)); cf. Sanchez-Garcia, 642 F.3d at 661-62, the record of conviction

established that this particular conviction does qualify as a “drug trafficking offense”

under § 2L1.2. 

The government presented two documents at sentencing. The first is a statecourt complaint charging two counts. Count Two states that Benitez-De Los Santos

unlawfully possessed heroin for sale in violation of § 11351. The second document,

a “Report-Indeterminate Sentence,” bears the same case number and parties as the

complaint, was filed by the state court within one month of the complaint, and reflects

that Benitez-De Los Santos was convicted by plea of Count Two. Benitez-De Los

Santos does not challenge the district court’s consideration of the complaint or dispute

that heroin is a “controlled substance” under the CSA. See 21 U.S.C. § 812(c), sched.

I(b)(10); 21 C.F.R. § 1308.11(c)(11). He argues, however, that the “ReportIndeterminate Sentence” is insufficient to meet the government’s burden of proof.
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Benitez-De Los Santos first argues that the sentence report is a clerical record

that is not a “comparable judicial record” under Shepard, and thus cannot establish

that he was convicted of Count Two. In United States v. Snellenberger, 548 F.3d 699

(9th Cir. 2008) (en banc), the Ninth Circuit held that a California court clerk’s minute

order is sufficient under Shepard to establish that a defendant pled guilty to a specific

count from a charging document. The court concluded that “by analogy to transcripts,

it’s enough that the minute order was prepared by a neutral officer of the court, and

that the defendant had the right to examine and challenge its content, whether or not

he actually did.” Id. at 702. Relying on Snellenberger, the Ninth Circuit later held

that a California Report-Indeterminate Sentence is sufficiently reliable evidence that

an alien pleaded guilty to a drug offense involving cocaine. See Castro v. Holder, 340

F. App’x 410, 412 (9th Cir. 2009); cf. People v. Keltie, 196 Cal. Rptr. 243, 250 n.4

(Cal. Ct. App. 1983) (taking judicial notice of a California “Report-Indeterminate

Sentence, other sentence choice”). 

We agree with the Ninth Circuit and conclude that the Report-Indeterminate

Sentence is the type of reliable and accurate judicial record on which a court may rely.

It is an official court document prepared and signed by a deputy clerk of the court.

See Castro, 340 F. App’x at 412. The state court was required to complete the report

pursuant to California law. The document was filed by the state court, and Benitez-De

Los Santos could have examined it and urged the state court to correct any

inaccuracies. See People v. Mitchell, 26 P.3d 1040, 1042 (Cal. 2001) (“[A] court has

the inherent power to correct clerical errors in its records . . . on its own motion or

upon the application of the parties.”) (internal quotation omitted). 

Benitez-De Los Santos further contends that even if we rely on the “ReportIndeterminate Sentence,” it is insufficient to establish that his conviction was for

trafficking heroin. He argues that because California allows a defendant to enter a

plea of nolo contendere, see People v. West, 477 P.2d 409 (Cal. 1970), and the

sentence report does not indicate the type of plea entered, the government cannot
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establish factual guilt. The enhancement, however, depends on a conviction for a

felony drug trafficking offense, not an explicit admission of guilt. See USSG

§ 2L1.2(b)(1)(B). Because the Supreme Court in Shepard noted that “‘the details of

a generically limited charging document would do in any sort of case[,]’. . . [a]

precisely drawn charging document can indicate the basis for conviction whether or

not the conviction was accompanied by an admission of guilt.” Vinton, 631 F.3d at

486 (quoting Shepard, 544 U.S. at 21). Here, a precisely drawn charging document

establishes that the basis for Benitez-De Los Santos’s prior conviction is possession

of heroin for sale, undisputedly a drug trafficking offense under § 2L1.2(b)(1)(B).

The district court thus did not err in applying the enhancement.

Benitez-De Los Santos also contends that his sentence is substantively

unreasonable because it is “longer than necessary to serve the goals of 18 U.S.C.

§ 3553(a).” In reviewing the substantive reasonableness of the district court’s

sentence, we apply a deferential abuse of discretion standard. Gall v. United States,

552 U.S. 38, 41 (2007). We accord the sentence a presumption of reasonableness

when, as here, the district court imposes a sentence within the advisory guideline

range. United States v. Ruelas-Mendez, 556 F.3d 655, 657 (8th Cir. 2009). The

district court stated that it had considered all of the § 3553(a) factors, that it found

general and specific deterrence the most important factors, and that “a sentence at the

lowest end of the guideline range is sufficient but not greater than necessary to serve

the [deterrence] purpose and the other purposes of [§ 3553(a)].” This explanation

satisfies us that the court did not abuse its considerable discretion.

* * *

The judgment of the district court is affirmed.

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