                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
                 UNITED STATES COURT OF APPEALS
                          FIFTH CIRCUIT                        May 10, 2006

                                                         Charles R. Fulbruge III
                                                                 Clerk
                          No. 05-50881
                        Summary Calendar




                    UNITED STATES OF AMERICA,

                                                Plaintiff-Appellee,

                             versus

                 JOSE ALBERTO RODRIGUEZ-IBARRA,

                                                Defendant-Appellant.


          Appeal from the United States District Court
                for the Western District of Texas
                        (3:05-CR-262-ALL)


Before BARKSDALE, STEWART, and CLEMENT, Circuit Judges.



PER CURIAM:*

     Jose Alberto Rodriguez-Ibarra appeals the sentence imposed

following his guilty-plea conviction for illegal reentry after

deportation, in violation of 8 U.S.C. § 1326.         He claims the

district court reversibly erred:   (1) in treating his prior state

drug conviction as a “drug trafficking offense” under Sentencing

Guideline § 2L1.2(b)(1)(A); and (2) in denying his downward-



     *
      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this opinion should not be published and is not precedent except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.
departure motion because, in doing so, the court did not consider

the sentencing factors in 18 U.S.C. § 3553(a) and therefore imposed

his sentence under a mandatory guidelines scheme.

      Unlike United States v. Gutierrez-Ramirez, 405 F.3d 352, 359

(5th Cir.), cert. denied, 126 S. Ct. 217 (2005), the district court

in this case had access to the charging document for Rodriguez-

Ibarra’s 1996 state drug conviction.             Count Two of that document,

the count to which Rodriguez-Ibarra pleaded guilty, charged that

Rodriguez-Ibarra, in violating California Health & Safety Code

§ 11352, did “willfully and unlawfully sell a controlled substance,

to wit: Cocaine”.         Accordingly, the charging document did not

merely track the language of § 11352(a), but provided evidence that

Rodriguez-Ibarra’s § 11352(a) conviction qualified as a “drug

trafficking      offense”        under     the    Guidelines.         See     id.;

§ 2L1.2(b)(1)(B), cmt. n.1(B)(iv).

      Because Rodriguez-Ibarra maintains, for the first time on

appeal, that his sentence was imposed under a mandatory guidelines

scheme,    our   review     is   for     plain   error.     United    States    v.

Valenzuela-Quevedo, 407 F.3d 728, 732 (5th Cir.), cert. denied, 126

S. Ct. 267 (2005).     There is no error, plain or otherwise, because,

in   its   Statement   of    Reasons,      the   district    court    stated    it

considered    the   Guidelines      in    an   advisory   fashion    and    that a

reasonable and adequate sentence could be achieved only by imposing

a sentence outside the advisory guidelines range. Rodriguez-Ibarra
was sentenced to 36 months of imprisonment, below the recommended

41-51 months range.

                                                      AFFIRMED
