     Case: 11-30895     Document: 00511872905         Page: 1     Date Filed: 05/31/2012




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

                                                                            FILED
                                                                           May 31, 2012
                                     No. 11-30895
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

GILBERTO RAMOS-MARRUFO, also known as Gilberto Ramos-Marrufa, also
known as Gilberto Ramos, also known as Gilberto Marrufo,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:11-CR-112-1


Before KING, JOLLY, and GRAVES, Circuit Judges.
PER CURIAM:*
        Gilberto Ramos-Marrufo pleaded guilty to illegal reentry, and the district
court sentenced him within the advisory guidelines range to 46 months of
imprisonment. Ramos-Marrufo’s total offense level was enhanced by 16 levels
under U.S.S.G. § 2L1.2(b)(1)(A)(i) based on the district court’s determination
that his prior Illinois conviction for unlawful delivery of a controlled substance
amounted to a drug trafficking offense for which the sentence imposed exceeded


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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                                  No. 11-30895

13 months of imprisonment. The presentence report (PSR), to which Ramos-
Marrufo did not object and which the district court adopted, provided that in
2003, Ramos-Marrufo was convicted in Illinois of one count of unlawful delivery
of a controlled substance and one count of criminal drug conspiracy.
      For the first time on appeal, Ramos-Marrufo argues that the district court
erred by relying solely on the PSR to conclude that his prior unlawful delivery
of a controlled substance conviction was a drug trafficking offense under
§ 2L1.2(b)(1)(A)(i) because the Illinois statute under which he was convicted
prohibits the unlawful delivery of controlled substances, their analogs, or
counterfeit substances. Because he failed to object to the 16-level enhancement
in the district court, review is for plain error. United States v. Garcia-Arellano,
522 F.3d 477, 480 (5th Cir. 2008).
      A plain error is a forfeited error that is clear or obvious and affects the
defendant’s substantial rights. United States v. Ellis, 564 F.3d 370, 377 (5th Cir.
2009). When those elements are shown, we have the discretion to correct the
error only if it “seriously affects the fairness, integrity, or public reputation of
judicial proceedings.” Id. (internal quotation marks and citation omitted). The
Government has supplemented the record on appeal with an indictment and
judgment documenting Ramos-Marrufo’s prior delivery and conspiracy
convictions. “Therefore, we must determine whether the district court plainly
erred in imposing the sentence enhancement based on the record before us as
supplemented with the state court documents concerning [Ramos-Marrufo’s]
conviction[s].” Garcia-Arellano, 522 F.3d at 480.
      Ramos-Marrufo’s state court papers reveal that although his prior delivery
conviction involved either cocaine or its analog, his prior conspiracy conviction
involved actual cocaine. He was sentenced to eight years and six months of
imprisonment on both counts.         Because Ramos-Marrufo’s prior conspiracy
conviction was a “drug trafficking offense for which the sentence imposed
exceeded 13 months,” he has not demonstrated that the district court plainly

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                               No. 11-30895

erred by applying the 16-level enhancement. See Ellis, 564 F.3d at 377. The
judgment of the district court is AFFIRMED.




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