*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this opinion should not be published and is not precedent except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.

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United States Court of Appeals

Fifth Circuit

FILED

October 16, 2006

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 05-41741

____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee, 

v.

ELIZABETH BENAVIDEZ-GONZALEZ,

Defendant-Appellant. 

__________________

Appeal from the United States District Court

For the Southern District of Texas

(05-CR-223)

__________________

Before JOLLY, DAVIS, and BENAVIDES, Circuit Judges.

PER CURIAM:*

Elizabeth Benavidez-Gonzalez pleaded guilty to being

illegally present in the United States after previously having

been deported, in violation of 8 U.S.C. § 1326(a) and (b) (2005). 

At sentencing, she received a 16-level sentencing enhancement

based on a previous conviction for delivery of a controlled

substance and was sentenced to 30 months. Benavidez-Gonzalez now

appeals her sentence arguing: (1) the district court erred by

enhancing her sentence under United States Sentencing Guidelines
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(“U.S.S.G.”) § 2L1.2(b)(1)(A)(i) (2005); and (2) the enhancement

provisions contained in 8 U.S.C. § 1326(b) are unconstitutional. 

For the following reasons, the sentence is AFFIRMED.

I.

On May 5, 2005, Benavidez-Gonzalez pleaded guilty to being

illegally present in the United States in violation of 8 U.S.C. §

1326(a) and (b). The PSR recommended a 16-level enhancement

because of a prior conviction for “a drug trafficking offense for

which the sentence imposed exceeded thirteen months.” U.S.S.G §

2L1.2(b)(1)(A)(i). In 1997, Benavidez-Gonzalez was convicted in

Texas state court of possession with intent to deliver cocaine and

was sentenced to 15 years imprisonment. The probation officer

based the 16-level adjustment on this conviction.

Prior to sentencing, Benavidez-Gonzalez asserted that the

16-point upward adjustment was inappropriate because neither the

indictment nor the judgment had been produced nor had any

reference been made to the statute of conviction. BenavidezGonzalez also objected to the constitutionality of 8 U.S.C. §

1326(b). 

At sentencing, after the indictment and the judgment of

conviction had been filed in the record, the district court

overruled Benavidez-Gonzalez’s general objection to application

of the “drug trafficking” enhancement. The relevant state court

documents showed that Benavidez-Gonzalez had pleaded guilty to an
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indictment which stated that she had “unlawfully, intentionally

and knowingly possess[ed] with intent to DELIVER a controlled

substance, namely, COCAINE, ...” (emphasis in original). These

documents did not, however, provide any underlying facts of

Benavidez-Gonzalez’s crime. The district court also overruled

Benavidez-Gonzalez’s constitutional challenge to the statute of

conviction, 8 U.S.C. § 1326(b). After making a number of

adjustments that are not challenged on appeal, BenavidezGonzalez’s advisory guidelines imprisonment range was 30 to 37

months. The court sentenced her to 30 months, to be followed by

a two-year term of supervised release. This appeal followed.

Appellant raises two issues: (1) whether the district court

misapplied the Guidelines when it enhanced her offense level by

16 levels pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(i); and (2)

whether the enhancement provisions of 8 U.S.C. § 1326(b) are

unconstitutional.

II.

A.

Benavidez-Gonzalez argues that the district court erred by

enhancing her sentence by 16 levels on the basis of her 1997

conviction. Benavidez-Gonzalez notes that the relevant statutory

provision, Texas Health and Safety Code § 481.112(a), criminalizes

a variety of conduct, including acts that cannot form the basis for

a sentencing enhancement under § 2L1.2(b)(1)(A)(i). Because
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Benavidez-Gonzalez did not object to the 16-level enhancement on

the basis that her conviction did not constitute a drug-trafficking

felony in the district court, we review for plain error. 

Plain error exists when: “(1) there was an error: (2) the

error was clear and obvious; and (3) the error affected the

defendant’s substantial rights.” United States v. Villegas, 404

F.3d 355, 358 (5th Cir. 2005). Even if these conditions are met,

an appellate court may exercise its discretion to notice the

error only if “(4) the error seriously affects the fairness,

integrity, or public reputation of judicial proceedings.” Id. at

358-59.

Benavidez-Gonzalez argues that the statute at issue includes

some conduct that would not qualify as “drug trafficking” under

the Sentencing Guidelines. Specifically, she notes that the

Texas statute’s definition of “delivery” includes merely

“offering to sell” the substance. TEX. HEALTH & SAFETY CODE ANN. §

481.002(8) (Vernon 2005). We assume without deciding that she is

correct. 

We conclude, however, that even if the district court

committed obvious error, Benavidez-Gonzalez has failed to satisfy

the third prong of plain error review. To show that the error in

applying the sentencing enhancement affected her substantial

rights, Benavidez-Gonzalez must at least argue that her previous

conduct did not constitute drug trafficking. See United States
5

v. Ochoa-Cruz, 442 F.3d 865, 867 (5th Cir. 2006). In Ochoa,

utilizing the categorical approach, we concluded that the

district court had erred in imposing an enhancement because it

had failed to examine the statutes under which the defendant’s

prior convictions were attained, and had instead relied on the

presentence report’s characterization of those convictions as

“crimes of violence.” Ochoa-Cruz, 442 F.3d at 867. Although the

panel found that the district court had committed obvious error,

it concluded that the defendant had failed to satisfy the third

prong of the plain error test because he had not argued that his

previous conduct did not constitute “crimes of violence.” Id.

The court said that in order to satisfy the third prong of plain

error, the defendant must “at least argue that the crime of

violence enhancement was ultimately wrong.” Id. In GonzalezPatino, we similarly found that where the defendant had not

argued that his conviction was for conduct that was not “drug

trafficking,” he could not establish under plain error review

that application of a drug trafficking enhancement affected his

substantial rights. 2006 WL 1307502, at *2.

Benavidez-Gonzalez has not argued to the district court or to

this court that her conduct did not constitute a “drug trafficking

offense.” She has not demonstrated that the district court’s error

affected her substantial rights. Therefore, her argument fails

under plain error review.
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B.

Benavidez-Gonzalez contends that the “felony” and “aggravated

felony” provisions of 8 U.S.C. § 1326(b) are unconstitutional,

facially and as applied to her. Her challenge to the

constitutionality of § § 1326(b)(1) and (2) is foreclosed by

Alemndarez-Torres v. United States, 523 U.S. 224, 235 (1998), in

which the Supreme Court held that the treatment of prior

convictions as sentencing factors in sections 1326(b)(1) and (2) is

constitutional. Although Benavidez-Gonzalez contends that a

majority of the Supreme Court now considers Almendarez-Torres to be

incorrectly decided in light of Apprendi, this court has repeatedly

rejected arguments like the one made by Benavdiez-Gonzalez and has

held that Almendarez-Torres remains binding despite Apprendi. See,

e.g., United States v. Mendez-Villa, 346 F.3d 568, 570-71 (5th Cir.

2003) (per curiam). Accordingly, Benavidez-Gonzalez’s arguments

that § 1326(b)(1) and (2) are unconstitutional in light of Apprendi

fail.

III.

For the foregoing reasons, the judgment of the district

court is AFFIRMED.