[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

________________________ No. 14

- 14008 Non

- Argument Calendar

________________________ D.C. Docket No. 8:14

- cr - 00070

- WJC

- AEP

- 1

UNITED STATES OF AMERICA, Plaintiff

- Appellee,

versus LEOPOLDO ANTUNEZ

- CORNELIO, a.k.a. Juan Carlos Simon

- Castro, Defendant

- Appellant.

________________________ Appeal from the United States District Court for the Middle District of Florida

________________________ ( July 15, 2015 ) Before MARTIN , JULIE CARNES and ANDERSON , Circuit Judges. PER CURIAM:

Case: 14-14008 Date Filed: 07/15/2015 Page: 1 of 52 Leopol do An tunez

- Cornelio appeals his 70

- month sentence for unlawful ly entering the United States and unlawfully re

- entering the United States after having been deported

. On appea l, Antunez

- Cornelio argues that the district court erred by applying a 16

- level en hancement under United States Sentencing Guidelines § 2L1.2(b)(1)(A). Specifically, he argues that his prior conviction under Florida’s drug trafficking statute, Fla. Stat. § 893.135, is not a “ drug trafficking offense” under USSG § 2L1.2. We review de n ovo the district court’s application of the Sentencing Guidelines. United States v. Madera

- Madera , 333 F.3d 1228, 1231 n.2 (11th Cir. 2003).
A defendant convicted of unlawful ly re

- entering the United States receive s a 16

- level enhancement if he or she was previously deported following a conviction for a felony drug trafficking offense that carried more than a 13

- month sentence

. USSG § 2L1.2(b)(1)(A)(i). A drug trafficking offense is “ an offense under federal,
state , or local law that prohibits, ” among other things , the “distribution, or dispensing of, or offer to sell a controlled substance . . . or the possession of a controlled substance . . . with intent to . . . distribute[] or dispense.” Id. § 2L1.2

c m t. n.1(B )(iv)

. The district court did not err in determining that Antunez

- Cornelio’s prior conviction was a drug trafficking offense qualifying him for an enhancement under USSG § 2L1.2(b)(1)(A). Under Florida’s drug trafficking statute,

Case: 14-14008 Date Filed: 07/15/2015 Page: 2 of 53 [a]ny person who knowi ngly sells, purchases, manufactures, delivers, or brings into [Florida], or who is knowingly in actual or constructive possession of, 14 grams or more of amphetamine . . . or methamphetamine . . . commits a felony of the first degree, which felony shall be known as “trafficking in amphetamine.” § 893.135(1)(f). Florida’s trafficking statute is divisible because it sets out one of its elements in the alternative

. See Descamps v. United States , 570 U.S. ___, ___,
133 S. Ct. 2276, 2281 (2013)

. Because some conviction s under Florida’s trafficking statute are drug traffickin g offenses and others are not, 1 w e apply the modified categorical approach and look to a limited class of documents to determine which of the alternative elements formed the basis of Antunez

Cornelio’s conviction. See id. The defendant’s assen t to a factual proffer during a plea colloquy may be used to establish which alternative formed the statutory basis of conviction. See United States v. Diaz

- Calderone , 716 F.3d 1345, 1348 , 13 51 (11th Cir. 2013) (holding that defendant’s assent to factual basis after pleading guilty was enough to show which crime he committed for purposes of a crime

- of

violence enhancement). Though it is uncertain whether a factual proffer following

a “best inte rests” plea can be used for the same purpose absent the defendant’s

1 For example, mere purchase is not a drug trafficking offense under USSG § 2L1.2. See United States v. Shannon , 631 F.3d 1187, 1189 (11th Cir. 2011) (purchase of cocaine is not a

“ controlled substance offense ” under USSG § 4B1.2(b) , which is substantially similar to the definition of a “ drug trafficking offense” in USSG § 2L1.2, see United States v. Orihuela , 320 F.3d 1302, 1304 (11th Cir. 2003) (per curiam))

. However , even Antunez

- Cornelio recognizes that delivery under § 893.135(1)(f) fall s within the drug trafficking definition in USSG § 2L1.2

.

Case: 14-14008 Date Filed: 07/15/2015 Page: 3 of 54 assent , id. at 1351, here the district court did not err by relying on Anunez

Cornelio’s factual basis. At the plea colloquy, the S tate agreed to reduce the char ge against Antunez

Cornelio to T rafficking in A mphetamine (14 to 28 grams)

. Antunez

- Cornelio ’s attorney stated that he would “plead[] guilty in his b est interest,” and then pl ead ed guilty. When the court asked for the factual basis for the charge , the S tate said that
Antunez

- Cornelio “delivered 29.2 grams of methamphetamine to law enforcement in exchange for $1,500.” When asked by t he court whether he would like to make
any changes to the factual proffer , Antunez

- Cornelio ’s attorney replied, “f urther testimony would reveal t hat the weight was 27.9. That’s the only addition.” The court “f[ound] the factual basis for his plea as reflected in the criminal report affidavit” and accepted his guilty plea. Antunez

- Cornelio did not object to the state court’s finding regarding the factual basis, nor did he assert his factual innocence during the plea colloquy. While Antunez

- Cornelio did not admit to delivering drugs

— indeed, his “best interest” plea suggests the opposite

— this does not affect our analysis of which alternative eleme nt formed the basis of his conviction. Antunez

- Cornelio assented to the proffer because he made a specific objection, disputing the quantity of drugs involve d, but did not challenge the fact that he delivered, rat her than possessed, the drugs. This estab lishes that delivery of methamphetamine was the

Case: 14-14008 Date Filed: 07/15/2015 Page: 4 of 55 statutory basis for his conviction. As Antunez

- Cornelio conceded before the district court, a conviction for delivering methamphetamine is a drug trafficking offense and qualifies him for an enhancement under U SSG § 2L1.2(b) (1)(A)

. Upon review of the record and consideration of the parties’ briefs, we find no error in Antunez

- Cornelio’s total sentence. AFFIRMED. Case: 14-14008 Date Filed: 07/15/2015 Page: 5 of 5