           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                   Fifth Circuit

                                                                            FILED
                                                                           June 11, 2008

                                       No. 06-41252                   Charles R. Fulbruge III
                                                                              Clerk

UNITED STATES OF AMERICA

                                                  Plaintiff - Appellee
v.

ANTONIO BLANCO-ACOSTA, also known as Antonio Costa

                                                  Defendant - Appellant



                   Appeal from the United States District Court
                        for the Southern District of Texas
                            USDC No. 5:05-CR-1590-1


Before REAVLEY, JOLLY, and GARZA, Circuit Judges.
PER CURIAM:*
       Antonio Blanco-Acosta appeals his sentence for illegal reentry.                    He
contends that the district court erred in applying a 16-level enhancement to his
offense level for a prior offense that was said to be a “drug trafficking offense”
under U.S.S.G. § 2L1.2(b)(1)(A)(i). Because Blanco has not demonstrated that
the district court committed plain error in applying the enhancement, we
AFFIRM.



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
                                       No. 06-41252

       Blanco pled guilty to illegal reentry on July 19, 2005. The advisory
Guidelines range was 57 to 71 months, based on an offense level that included
a 16-level enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(i) for a 1991 New York
conviction for criminal sale of a controlled substance under New York Penal Law
§ 220.39[1]. The district court sentenced Blanco to 57 months of imprisonment,
three years of supervised released, and a $100 assessment. Blanco appealed his
conviction to this court.
       Blanco contends that his prior New York conviction for criminal sale of a
controlled substance is not a “drug trafficking offense” within the meaning of
U.S.S.G. § 2L1.2(b)(1)(A)(i) and that the district court erred by applying the
enhancement in calculating his advisory Guidelines range. He also contends
that his sentence is unreasonable as a matter of law1 and that the "felony" and
“aggravated felony” provisions of 8 U.S.C. § 1326(b)(1) and (2) are
unconstitutional.2
       Blanco did not object to the application of an enhancement under U.S.S.G.
§ 2L1.2(b)(1)(A)(i) for his prior drug conviction, so our review is for plain error
only. Under the plain error standard, we will reverse only if (1) there is an error,
(2) the error is plain (clear or obvious) under current law, and (3) the error
affects the defendant’s substantial rights. United States v. Quintana-Gomez, 521


       1
         Blanco argues that this court’s decisions after United States v. Booker, 543 U.S. 220
(2005), effectively reinstated the mandatory Guidelines system by entitling within-Guidelines
sentences to a presumption of reasonableness and requiring an articulation of the reasons for
a sentence outside the Guidelines. Blanco anticipated that the Supreme Court’s consideration
of Claiborne v. United States, 127 S.Ct. 551 (2006), and Rita v. United States, 127 S.Ct. 2456
(2007), indicated that the Court might overrule that regime. The Court did not do so. The
Supreme Court in Rita affirmed the use at the appellate level of a presumption that a sentence
within the correctly calculated Guidelines range is reasonable. 127 S.Ct. at 2463 (2007). This
court continues to apply such a presumption, and Blanco does not rebut this presumption by
contending that the sentence imposed in his case was unreasonable.
       2
         Blanco properly concedes that this issue is foreclosed by Almendarez-Torres v. United
States, 523 U.S. 224, 235 (1995), and raises the argument here only to preserve it for further
review.

                                              2
                                    No. 06-41252

F.3d 495, 496 (5th Cir. 2008). When the three elements of plain error are
present, relief is discretionary with the court of appeals and should be granted
only when a plain error “seriously affect[s] the fairness, integrity, or public
reputation of judicial proceedings.” United States v. Calverley, 37 F.3d 160, 164
(5th Cir. 1994) (en banc) (abrogated in part on other grounds by Johnson v.
United States, 520 U.S. 461, 468 (1997)).
       Blanco was convicted of the New York drug offense after pleading guilty
to an indictment alleging that he “knowingly and unlawfully sold to a police
officer known to the Grand Jury a narcotic drug, to wit, cocaine.” Blanco’s
indictment expressly alleged that he sold narcotics. For the reasons expressed
in United States v. Stanley, No. 06-40981 (5th Cir. June 2008), we hold that the
district court did not commit plain error in finding that Blanco’s prior conviction
was for a felony that is a drug trafficking offense.3
      For the foregoing reasons the judgment of the district court is AFFIRMED.
Blanco’s motion to expedite his appeal is DENIED.




      3
       This case was consolidated with United States v. Stanley for the purposes of oral
argument.

                                           3
