IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 15-11169

Summary Calendar 

UNITED STATES OF AMERICA, 

Plaintiff - Appellee 

v. 

JOSE ALBERTO VILLA-SANCHEZ, 

Defendant - Appellant 

Appeal from the United States District Court 

for the Northern District of Texas

USDC No. 3:15-CR-255-1

Before BARKSDALE, HAYNES, and HIGGINSON, Circuit Judges. 

PER CURIAM:*

Jose Alberto Villa-Sanchez, a citizen of Mexico, appeals the sentence 

imposed for his illegal reentry, in violation of 8 U.S.C. § 1326. In that regard, 

Villa pleaded guilty to entering the United States without permission after 

having been previously deported in 2011. 

In 2005, Villa was convicted, inter alia, of possession with intent to 

deliver a controlled substance, in violation of Tex. Health & Safety Code 

§ 481.112(a). The presentence investigation report (PSR) recommended, inter 

 

* 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.

United States Court of Appeals

Fif h Circuit

FILED

January 5, 2017

Lyle W. Cayce

Clerk

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No. 15-11169

2 

alia, the 2005 convictions qualified as drug-trafficking offenses, warranting a 

Guidelines enhancement as defined under Guideline § 2L1.2 cmt. n.1(B)(iv). 

Villa did not object to the recommended enhancement; and, at sentencing, the 

court confirmed Villa had no objection to it. The court adopted the PSR and 

sentenced Villa to 71-months’ imprisonment, within the advisory Guidelines 

sentencing range. 

For the first time on appeal, Villa challenges the determination that his 

prior Texas convictions qualified as drug-trafficking offenses, warranting an 

enhancement under § 2L1.2(b)(1)(A)(i). Although post-Booker, the Sentencing 

Guidelines are advisory only, the district court must avoid significant 

procedural error, such as improperly calculating the Guidelines sentencing 

range. Gall v. United States, 552 U.S. 38, 48–51 (2007). If no such procedural 

error exists, a properly preserved objection to an ultimate sentence is reviewed 

for substantive reasonableness under an abuse-of-discretion standard. Id. at 

51; United States v. Delgado-Martinez, 564 F.3d 750, 751―53 (5th Cir. 2009). 

In that respect, for issues preserved in district court, its application of the 

Guidelines is reviewed de novo; its factual findings, only for clear error. E.g.,

United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008). 

Because Villa did not preserve his challenge in district court, review is 

only for plain error. E.g., United States v. Broussard, 669 F.3d 537, 546 (5th 

Cir. 2012). Under that standard, Villa must show a forfeited plain (clear or 

obvious) error that affected his substantial rights. Puckett v. United States, 

556 U.S. 129, 135 (2009). If he does so, we have the discretion to correct the 

reversible plain error, but should do so only if it “seriously affect[s] the fairness, 

integrity or public reputation of judicial proceedings”. Id.

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Villa contends his prior convictions do not qualify as drug-trafficking 

offenses in the light of the 2008 revisions to § 2L1.2 cmt. n.1(B)(iv), which 

added the below bracketed phrase to the Guideline: 

“Drug trafficking offense” means an offense under federal, state, 

or local law that prohibits the manufacture, import, export, 

distribution, or dispensing of, [or offer to sell] a controlled 

substance (or a counterfeit substance) or the possession of a 

controlled substance (or counterfeit substance) with intent to 

manufacture, import, export, distribute or dispense. 

§ 2L1.2 cmt. n.1(B)(iv) (2014) (brackets added). In support, Villa points to 

United States v. Ford, 509 F.3d 714, 717―18 (5th Cir. 2007), in which our court 

determined the same Texas offense at issue here qualified as a “controlledsubstance offense” pursuant to §§ 2K2.1(a)(4)(A) (2015), and 4B1.2(b) (2015). 

Notably, the definition of “controlled-substance offense” was identical to the 

pre-revision version of “drug-trafficking offense”. See Ford, 509 F.3d at 715. 

Villa contends the 2008 revision to the “drug-trafficking offense” definition 

evinces the intent, in response to Ford, to remove application of the 

enhancement for prior convictions for possession with intent to offer for sale. 

He reasons that the addition of “offer to sell” only to the list of qualifying 

completed crimes, and not to crimes of possession with intent, demonstrates 

the intent to exclude the Texas offense from triggering the enhancement. 

Villa, however, admits any error was not plain, and states he is raising 

the issue to preserve it for possible further review. He contends, nonetheless, 

that, because the error affects his substantial rights, this court should exercise 

discretion to reverse the error. As Villa concedes, no plain error was committed 

by the court’s application of § 2L1.2 cmt. n.1(B)(iv) (2014). And, our court only 

has discretion to correct a plain (clear or obvious) error that affected his 

substantial rights. Puckett, 556 U.S. at 135. 

AFFIRMED. 

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