Opinion
No. 10-10377 Summary Calendar.
March 23, 2011.
Denise Bridges Williams, Assistant U.S. Attorney, U.S. Attorney's Office, Lubbock, TX, for Plaintiff-Appellee.
William Reynolds Biggs, Assistant Federal Public Defender, Federal Public Defender's Office, Dallas, TX, Sherylynn Ann Kime-Goodwin, Assistant Federal Public Defender, Federal Public Defender's Office, Lubbock, TX, for Defendant-Appellant.
Appeal from the United States District Court for the Northern District of Texas, USDC No. 5:09-CR-82-1.
Before JONES, Chief Judge, and SMITH and CLEMENT, Circuit Judges.
Heriberto Orozco-Campos appeals from the sentence imposed for his guilty plea conviction for illegal reentry after deportation. He argues for the first time on appeal that the district court erred by applying a16-level adjustment to his sentence because his Montana conviction for conspiracy did not qualify as a drug trafficking offense for purposes of U.S.S.G. § 2L1.2(b)(1)(A)(i). He asserts that the Montana statute under which he was convicted encompasses two substances that are not prohibited under the federal controlled substances act and that the district court could not rely upon the information in the presentence report (PSR) indicating that his Montana conviction involved marijuana. Because Orozco-Campos did not object on this basis in district court, we review this issue only for plain error. United States v. Henao-Melo, 591 F.3d 798, 801 (5th Cir. 2009).
Although the district court was not permitted to rely solely upon the PSR to determine whether the prior conviction constituted a drug trafficking offense under § 2L1.2, it may "use all facts admitted by the defendant in determining whether the prior conviction qualifies as an enumerated offense under § 2L1.2." United States v. Martinez-Vega, 471 F.3d 559, 563 (5th Cir. 2006) (internal quotation marks and citation omitted). Orozco-Campos's explicit adoption of the PSR was sufficient to support the § 2L1.2 adjustment for purposes of plain error review. See United States v. Sanchez, 389 Fed.Appx. 378, 380 (5th Cir. 2010); Martinez-Vega, 471 F.3d at 563; cf. United States v. Velasquez-Torrez, 609 F.3d 743, 747-48 (5th Cir.) (holding that, because defendant and counsel specifically affirmed that they had reviewed the PSR for accuracy and made no objections to it, the district court did not commit reversible plain error by relying upon the defendant's admission of his prior removal following a felony conviction, as stated in the PSR), cert. denied, ___ U.S. ___, 131 S.Ct. 438, 178 L.Ed.2d 339 (2010); United States v. Ramirez, 557 F.3d 200, 204-05 (5th Cir. 2009) (same). He has therefore failed to show error that was clear or obvious in this regard. See Puckett v. United States, 556 U.S. 129, 129 S.Ct. 1423, 1429, 173 L.Ed.2d 266 (2009).
The judgment of the district court is AFFIRMED.