Summary
holding defendant's conviction under Texas law for possession of a controlled substance of less than one gram was a felony for purposes of § 2L1.2
Summary of this case from United States v. Hernandez-ZunigaOpinion
No. 09-10958 Summary Calendar.
November 15, 2010.
Nancy E. Larson, Assistant U.S. Attorney, U.S. Attorney's Office, Fort Worth, TX, for Plaintiff-Appellee.
William Reynolds Biggs, William Ernest Hermesmeyer, Federal Public Defender's Office, DALLAS, TX, William Ernest Hermesmeyer, Federal Public Defender's Office, Fort Worth, TX, for Defendant-Appellant.
Appeal from the United States District Court for the Northern District of Texas, USDC No. 4:09-CR-57-1.
Before REAVLEY, DENNIS, and CLEMENT, Circuit Judges.
Adolfo Martinez-Padron (Martinez) appeals the 36-month sentence imposed following his guilty plea conviction of illegal reentry. Martinez argues that the district court improperly enhanced his offense level pursuant to U.S.S.G. § 2L1.2(b)(1)(D) based on its determination that his prior Texas conviction for cocaine possession was a felony as defined by the Sentencing Guidelines. More specifically, Martinez contends that the district court erred because its conclusion that his prior state conviction was for a felony offense relied exclusively upon the characterization of his offense in the presentence report.
Martinez did not object to the characterization of his prior conviction as a felony or challenge the imposition of the four-level enhancement under § 2L1.2(b)(1)(D). Accordingly, we review only for plain error. United States v. Garcia-Arellano, 522 F.3d 477, 480 (5th Cir. 2008). Our determination whether there is error is "based on the record before us as supplemented with the state-court documents" related to Martinez's prior conviction. Id.
Guideline § 2L1.2 provides for a four-level increase if the defendant has been previously convicted of a felony offense. § 2L1.2(b)(1)(D). State-court documents for Martinez's prior conviction, with which the Government has supplemented the record on appeal, show that Martinez pleaded guilty to possession of less than one gram of cocaine, a violation of TEX. HEALTH SAFETY CODE ANN. § 481.115(b). This offense is a state jail felony punishable by no less than 180 days nor more than two years in prison. See § 481.115(b); TEX. PENAL CODE ANN. § 12.35(a). Accordingly, the offense qualifies as a "felony" for purposes of § 2L1.2. § 2L1.2, comment, (n. 2); United States v. Rivera-Perez 322 F.3d 350, 352 (5th Cir. 2003). The application of the four-level enhancement was not error, plain or otherwise.
AFFIRMED.