                                                                  NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  _____________

                                       No. 17-1688
                                      _____________

                            UNITED STATES OF AMERICA

                                             v.

                              SALVADOR ORTIZ-URESTI,
                                           Appellant
                                  ______________

                       Appeal from the United States District Court
                         for the Eastern District of Pennsylvania
                              (D.C. No. 5-16-cr-00418-001)
                          District Judge: Hon. Edward G. Smith
                                     ______________

                      Submitted Under Third Circuit L.A.R. 34.1(a)
                                  January 25, 2018
                                  ______________

           Before: HARDIMAN, VANASKIE, and SHWARTZ, Circuit Judges.

                                 (Filed: January 31, 2018)
                                     ______________

                                        OPINION *
                                     ______________
SHWARTZ, Circuit Judge.

       Salvador Ortiz-Uresti pleaded guilty to one count of illegal reentry after

deportation, in violation of 8 U.S.C. §§ 1326(a) and (b)(2). He now appeals his forty-


       *
        This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7,
does not constitute binding precedent.
eight month prison sentence on the ground that the District Court erred in concluding that

his Colorado drug conviction constituted an “aggravated felony,” and thereby incorrectly

raised the statutory maximum sentence from two years’ to twenty years’ imprisonment.

He also contends that the District Court erred in imposing a term of supervised release.

For the reasons set forth below, we will affirm.

                                              I

       Ortiz-Uresti, a native and citizen of Mexico, pleaded guilty in 2000 to a drug

offense in violation of Colo. Rev. Stat. Ann. § 18-18-405, and was sentenced to four

years’ imprisonment. A year later, he was removed from the United States to Mexico. In

2015, Ortiz-Uresti was arrested in Reading, Pennsylvania, pleaded guilty to state firearm

and drug trafficking charges, and was sentenced to twenty-two to forty-eight months’

imprisonment. After his arrest, he was interviewed by U.S. Immigrations and Customs

Enforcement agents, and he admitted that he did not have permission to return to the

United States and was in the country illegally.

       Ortiz-Uresti was then charged in federal court with one count of illegal reentry

after deportation, in violation of 8 U.S.C. § 1326, to which he pleaded guilty. At the plea

hearing, the District Court asked the Government to identify the aggravated felony that

triggered the enhanced maximum sentence under § 1326(b)(2). The Government stated

that “in January of 2000, [Ortiz-Uresti] pled guilty to possession with intent to distribute

a Schedule 2 controlled substance in the state of Colorado, and was sentenced to four

years[’] imprisonment in March of 2000.” App. 22-23. Addressing Ortiz-Uresti, the

District Court asked: “do you admit that you were in fact previously found guilty of

                                              2
possession with intent to deliver . . . [i]n Colorado?” App. 23. Ortiz-Uresti replied

“Yes,” App. 23, and agreed with the Government that in 2000, he “was arrested, charged

and convicted for a drug trafficking offense,” App. 32. The District Court also asked

Ortiz-Uresti whether he understood that because of his prior conviction for an aggravated

felony, he faced a maximum sentence of twenty years’ imprisonment, pursuant to §

1326(b)(2), and Ortiz-Uresti answered that he did.

       Ortiz-Uresti’s Presentence Investigation Report (“PSR”) recommended applying

an eight-level enhancement because he had been deported for a “felony drug distribution

conviction.” PSR ¶ 17. The PSR described the conduct underlying the charge as

“possess[ing] with intent to distribute more than 25 grams but less than 450 grams of

cocaine,” PSR ¶ 28, calculated his guideline range at forty-six to fifty-seven months, and

specified that he faced a statutory maximum term of imprisonment of twenty years.

       At the sentencing hearing, Ortiz-Uresti’s counsel confirmed that his client had no

objections or corrections to the factual findings, guidelines calculation, criminal history

category, or applicable statutory maximum in the PSR. The District Court sentenced

Ortiz-Uresti to forty-eight months’ imprisonment, to run consecutively to his state

firearm and drug sentence, and a three-year period of supervised release, reasoning that

his drug convictions, prior deportation, and subsequent reentry demonstrated that he

lacked “good rehabilitative potential.” App. 64-65. Ortiz-Uresti appeals.

                                             II 1


       1
         The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have
jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742.
                                              3
                                              A

       On appeal, Ortiz-Uresti argues for the first time that the District Court erred in

concluding that his prior Colorado drug conviction qualified as an “aggravated felony.”

Because Ortiz-Uresti failed to preserve his objection in the District Court, our review is

for plain error. Fed. R. Crim. P. 52(b); United States v. Couch, 291 F.3d 251, 252-53 (3d

Cir. 2002). To establish plain error, Ortiz-Uresti must demonstrate: (1) an error; (2) that

is clear or obvious; and (3) that affects his substantial rights. Gov’t of the V.I. v. Mills,

821 F.3d 448, 456 (3d Cir. 2016). If all three prongs are satisfied, then our Court has

discretion to remedy the error “only if the error seriously affects the fairness, integrity, or

public reputation of judicial proceedings.” Id. at 457 (alteration and internal quotation

marks omitted).

       Ortiz-Uresti was convicted of illegally reentering the United States following

deportation, in violation of 8 U.S.C. § 1326(a)(2). The statutory maximum prison

sentence for this offense increases from two years to ten years if a defendant’s prior

removal “was subsequent to a conviction for commission of . . . a felony,” id.

§ 1326(b)(1), and to twenty years if the removal followed “a conviction for commission

of an aggravated felony,” id. § 1326(b)(2).

       To determine whether a prior conviction qualifies as an aggravated felony, courts

typically “first attempt to employ the formal categorical approach[, which] involves

review of the statute of conviction without consulting other factual evidence.” Avila v.

Att’y Gen., 826 F.3d 662, 666 (3d Cir. 2016) (citation omitted). The categorical

approach asks “whether the state statute defining the crime of conviction categorically

                                               4
fits within the generic federal definition of a corresponding aggravated felony.”

Moncrieffe v. Holder, 569 U.S. 184, 190 (2013) (citation and internal quotation marks

omitted). “There are, however, situations in which a statute of conviction is divisible,

i.e., it ‘sets out one or more elements of the offense in the alternative,’” Avila, 826 F.3d

at 666 (quoting Descamps v. United States, 133 S. Ct. 2276, 2281 (2013)), rather than a

“single, indivisible set of elements,” Descamps, 133 S. Ct. at 2282. “Where the statute of

conviction is divisible,” Avila, 826 F.3d at 666, courts “may look beyond the face of the

statute to the ‘charging document, written plea agreement, transcript of plea colloquy,

and any explicit factual finding by the trial judge to which the defendant assented’ to

determine which of the alternative elements was involved in the defendant’s conviction,”

United States v. Abbott, 748 F.3d 154, 158 (3d Cir. 2014) (quoting Shepard v. United

States, 544 U.S. 13, 16 (2005)). The modified categorical approach, with its

consideration of these documents, “renders opaque which element played a part of the

defendant’s conviction.” Descamps 133 S. Ct. at 2283; Abbott, 748 F.3d at 158. Thus,

we must next determine whether the Colorado drug statute is divisible.

       At the time of Ortiz-Uresti’s conviction, the Colorado statute provided that it was

unlawful for a person to knowingly

       manufacture, dispense, sell, distribute, possess, or to possess with intent to
       manufacture, dispense, sell, or distribute a controlled substance; or induce,
       attempt to induce, or conspire with one or more other persons, to
       manufacture, dispense, sell, distribute, possess, or possess with intent to
       manufacture, dispense, sell, or distribute a controlled substance.

Colo. Rev. Stat. Ann. § 18-18-405(1)(a) (1992). The punishment for violating this

provision varied based upon the type and amount of the substance involved. For

                                              5
example, an individual whose violation involved cocaine, a Schedule II controlled

substance, id. § 18-18-204(2)(a)(IV), committed a class 3 felony, which carried a

sentence of four to twelve years’ imprisonment, unless the conduct involved at least

twenty-five grams but less than four hundred fifty grams of cocaine, in which case the

offender faced a mandatory minimum term of four years. Id. § 18-18-405(2)(a)(I), (3)(a).

Thus, a specific amount of cocaine triggered, among other things, whether a mandatory

minimum sentence applied. “[A]ny facts that increase the prescribed range of penalties

to which a criminal defendant is exposed are elements of a crime.” Alleyne v. United

States, 133 S. Ct. 2151, 2160 (2013) (citations and internal quotation marks omitted).

Because the statute can be violated by the distribution of many types of drugs and the

type and amount of drugs can increase the punishment, the statute includes several

alternative elements and is therefore divisible. 2 Abbott, 748 F.3d at 159; see also Mathis


       2
         The Colorado Supreme Court has examined whether the Colorado statute is
divisible and has reached conflicting results. Compare People v. Abiodun, 111 P.3d 462,
466 (Colo. 2005) (holding that the statute defines a single offense for double jeopardy
purposes because it is “structured as a series of acts, with reference to the same controlled
substance and governed by a common mens rea,” and the “acts chosen for specific
inclusion are not themselves mutually exclusive but overlap in various ways and cover a
continuum of conduct from the production of a controlled substance to its delivery to
another person, under any of a number of circumstances”) with People v. Valenzuela, 216
P.3d 588, 592-93 (Colo. 2009) (holding that because “the structure of the offense
provision makes clear that three distinct categories of actions are criminalized,” a
sentencing enhancement for extraordinary risk of harm applied only to one portion of the
crime). These decisions, however, predate the United States Supreme Court’s decisions
in Alleyne, Descamps, and Mathis, and therefore do not reflect how more current law
would apply to this statute.
       Our sister circuit recently analyzed the 2014 version of the Colorado statute,
which is materially similar to the 1999 version applicable to Ortiz-Uresti’s prior
conviction, and concluded that the statute is indivisible. United States v. McKibbon, 878
F.3d 967 (10th Cir. 2017). The court, however, relied only on the Colorado Supreme
                                             6
v. United States, 136 S. Ct. 2243, 2256 (2016) (stating that “[i]f statutory alternatives

carry different punishments, then under Apprendi they must be elements”). Because the

statute is divisible, we may look at the charging instrument and other documents to

determine which alternative elements had to be proven.

       Here, the charging instrument specified that the drug allegedly distributed was

“cocaine” and the quantity was “at least twenty-five grams but less than four hundred

fifty grams.” Supp. App. at 6. Thus, Ortiz-Uresti was convicted of distributing an

amount of cocaine that carried a mandatory minimum term of four years’ imprisonment.

       We must next determine whether such a crime constitutes an “aggravated felony”

under 8 U.S.C. § 1101(a)(43). The definition of an “aggravated felony” includes “illicit

trafficking in a controlled substance . . . including a drug trafficking crime.” Id.

§ 1101(a)(43)(B). A drug trafficking crime, in turn, is defined as “any felony punishable

under the Controlled Substances Act.” Moncrieffe, 569 U.S. at 188 (quoting 18 U.S.C.


Court’s decision in Abiodun and did not address the more recent decision in Valenzuela,
which held that the statute criminalizes “three distinct categories of actions” and therefore
casted doubt on Abiodun. Moreover, the McKibbon court appears to have overlooked
the teachings of Alleyne, Descamps, and Mathis, which dictate that any fact that impacts
a statutory sentencing range is an element of the offense. Here, because the penalty for
violating the statute varies depending on the type and quantity of drug involved in the
offense, the statute is divisible. Although one means for violating the statute may not be
a “drug trafficking crime,” we can apply the modified categorical approach, look at the
charging instrument, and see that Ortiz-Uresti was convicted not of a mere offer to sell,
but of possessing with intent to distribute an amount of cocaine that carried a mandatory
minimum term of four years’ imprisonment. See United States v. Blair, 734 F.3d 218,
225-26 (3d Cir. 2013) (in determining whether a defendant’s prior conviction constitutes
a violent felony using the modified categorical approach, a court may examine the entire
charging document because “the blinders are already off, and there is no requirement to
pretend otherwise”). Thus, Ortiz-Uresti’s prior conviction qualifies as a “drug trafficking
crime.”
                                              7
§ 924(c)(2)). A “state offense constitutes a felony punishable under the Controlled

Substances Act only if it proscribes conduct punishable as a felony under that federal

law.” Lopez v. Gonzales, 549 U.S. 47, 60 (2006) (internal quotation marks omitted).

Courts ordinarily use either the “illicit trafficking” or “hypothetical federal felony” tests

to determine whether a state drug statute qualifies as a felony punishable under the

Controlled Substances Act. Avila, 826 F.3d at 667.

       We need not apply the illicit trafficking test to Ortiz-Uresti’s conviction because

the “hypothetical felony route leads us clearly to the conclusion that [his] crime is an

aggravated felony.” Id. A Colorado conviction for distribution of a controlled substance

“is analogous to 21 U.S.C. § 841(a)(1) of the Controlled Substance Act,” which provides

that it is a crime to “distribute . . . a controlled substance.” Id. “Where the controlled

substance in question is cocaine, the crime [under § 841] is punishable by a term of

imprisonment of ‘not more than twenty years,’ which qualifies as a felony.” Id. at 667-68

(quoting 21 U.S.C. § 841(b)(1)(C)). Because Ortiz-Uresti’s crime of conviction is

analogous to the federal felony of distribution of cocaine prohibited by 21 U.S.C. § 841

and was punishable by a term exceeding one year, 3 he committed an aggravated felony,

and the District Court did not err in sentencing him in accordance with 8 U.S.C.

§ 1326(b)(2).




       3
        A crime punishable by a term exceeding one year is a felony under federal law.
See 18 U.S.C. §§ 3559, 3581; Moncrieffe, 569 U.S. at 188.
                                              8
                                             B

       Ortiz-Uresti also argues that the District Court erred in imposing a three-year term

of supervised release because, as a deportable immigrant, he was presumptively exempt

from such supervision. Ortiz-Uresti failed to preserve this challenge, so we review for

plain error. United States v. Azcona-Polanco, 865 F.3d 148, 151 (3d Cir. 2017).

       In Azcona-Polanco, our Court recently clarified a sentencing court’s procedural

obligations in imposing a term of supervised release under U.S.S.G. § 5D1.1(c), which

creates a presumption against supervised release in the case of a deportable immigrant.

865 F.3d at 152-53; U.S.S.G. § 5D1.1(c) (“The court ordinarily should not impose a term

of supervised release in a case in which supervised release is not required by statute and

the defendant is a deportable alien who likely will be deported after imprisonment.”). We

held that a sentencing court “must explain and justify the imposition of supervised release

on a deportable immigrant,” and must “state the reasons in open court for imposing a

term of supervised release on a deportable immigrant so that the appellate court is not left

to speculate about the reasons.” Id. at 153 (alterations and internal quotation marks

omitted). The sentencing court’s explanation “should directly address the presumption

against imposing supervised release and provide the court’s reasoning for taking a

different course of action in the case before it.” Id. (internal quotation marks omitted).

       Even though the District Court did not have the benefit of our explanation in

Azcona-Polanco, the District Court’s findings as to Ortiz-Uresti’s history of recidivism

upon his reentry into the United States and the need to deter future criminal conduct

provided its reasons for imposing a sentence that included supervised release and thus its

                                              9
ruling was consistent with our teachings in that case. The District Court stated that it was

“particularly concern[ed]” by the “criminal activities of the defendant, both of which led

to the deportation, then a re-entry, and then additional criminal offenses.” App. 64. The

District Court also noted that Ortiz-Uresti “is currently serving a sentence as a result of

the additional criminal activity that he engaged in after he had returned back to the

United States in violation of the law[.]” App. 64. Therefore, although the District Court

did not explicitly mention the presumption against supervised release for a deportable

immigrant like Ortiz-Uresti, its findings reflect an understanding of that presumption, and

its explanation provides us its reasons for imposing a term of supervised release. Thus,

the District Court did not err.

                                             III

       For the foregoing reasons, we will affirm.




                                             10
