     Case: 14-40551      Document: 00513148247         Page: 1    Date Filed: 08/10/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 14-40551
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                          August 10, 2015
UNITED STATES OF AMERICA,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff-Appellee

v.

NOEL DAVID RAMIREZ-BERTRAN,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                            USDC No. 2:13-CR-1101-1


Before JOLLY, DENNIS, and PRADO, Circuit Judges.
PER CURIAM: *
       Noel David Ramirez-Bertran pleaded guilty to illegal reentry in violation
of 8 U.S.C. § 1326(a) and (b)(2), and he was sentenced to 27 months of
imprisonment.         Ramirez-Bertran now challenges the district court’s
calculation of his guidelines sentencing range. He concedes that he did not
object on this basis in the district court, however, and we review the issue only




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 14-40551    Document: 00513148247    Page: 2   Date Filed: 08/10/2015


                                No. 14-40551

for plain error. See United States v. Rodriguez-Escareno, 700 F.3d 751, 753
(5th Cir. 2012).
      The district court applied a 12-level drug-trafficking enhancement
pursuant to U.S.S.G. § 2L1.2(b)(1)(B) based on Ramirez-Bertran’s 2009
Virginia conviction for manufacture of a controlled substance under § 18.2-248
of the Virginia Code. Ramirez-Bertran maintains that nothing in the record
shows under which particular subsection of the Virginia statute he was
convicted and that this court must therefore decide whether the least culpable
conduct under the statute, i.e., giving away or possessing with intent to give
away a small quantity of a controlled substance for no remuneration,
constitutes a drug-trafficking offense for purposes of § 2L1.2, comment.
(n.1(B)(iv)). This court recently held that an enhancement under § 2L1.2(b) for
a prior drug-trafficking conviction, as that term is defined by the Sentencing
Commission in § 2L1.2, comment. (n.1(B)(iv)), is warranted regardless of
whether the conviction for the prior offense required proof of remuneration or
commercial activity. See United States v. Martinez-Lugo, 782 F.3d 198, 204-05
(5th Cir. 2015), petition for cert. filed (June 19, 2015) (No. 14-10355).
Accordingly, the district court did not commit error, plain or otherwise, in
applying the § 2L1.2(b) enhancement.
      AFFIRMED.




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