                                                              FILED
                                                   United States Court of Appeals
                                                           Tenth Circuit
                        UNITED STATES COURT OF APPEALS
                                                                     September 11, 2007
                                    TENTH CIRCUIT
                                                                    Elisabeth A. Shumaker
                                                                        Clerk of Court

 UNITED STATES OF AMERICA,

           Plaintiff-Appellee,
                                                             No. 06-2102
 v.                                                       (D. New Mexico)
                                                      (D.C. No. CR-05-1031 JH)
 IVAN GARCIA-CASTANEDA,

           Defendant-Appellant.



                                 ORDER AND JUDGMENT *


Before KELLY, Circuit Judge, McWILLIAMS, Senior Circuit Judge, and O’BRIEN,
Circuit Judge.



       In a one-count criminal information filed on May 24, 2005, in the United States

District Court for the District of New Mexico, Ivan Garcia-Castaneda (the defendant) was

charged with having been found in New Mexico after he had been previously deported

from the United States because he had been convicted of an aggravated felony as defined

in 8 U.S.C. §1101(a)(43), in violation of 8 U.S.C. §§ 1326(a)(1) and (2) and 8 U.S.C.

§1326(b)(2). Specifically, the information reads as follows:

       The United States Attorney charges:



       *
        This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
              On or about the 4th day of November, 2004, the defendant, IVAN
       GARCIA-CASTANEDA, an alien, was found in Luna County, in the State and
       District of New Mexico, contrary to law in that the defendant had been convicted
       of an aggravated felony as defined by 8 U.S.C. §1101(a)(43), that being Delivery
       of a Controlled Substance, and thereafter had been deported, excluded and
       removed and departed the United States on or about February 5, 1999, while an
       Order of Exclusion, Deportation and Removal was outstanding, and the said
       defendant had not obtained the consent of the Attorney General of the United
       States or his successor, the Secretary of Homeland Security, pursuant to 6 U.S.C.
       §§ 202(3), 202(4) and 557, for reapplication by the defendant for admission into
       the United States.

             In violation of 8 U.S.C. §§ 1326(a)(1) and (2) and 8 U.S.C. §1326(b)(2).
       (Emphasis ours.)1

       On the same day the information was filed, the defendant appeared before a United

States Magistrate in Albuquerque, New Mexico with his attorney for arraignment, at

which time he entered a plea of guilty. There was no plea agreement. The defendant

apparently did not know much English, and a court interpreter was used throughout the

hearing. Preliminarily, the Magistrate ascertained that the defendant had signed a consent

to appear before a Magistrate Judge in a felony case. At that time, the defendant was

fully advised of his right to have presentment to a grand jury, which he waived. The

defendant then entered an unconditional plea of guilty to the charge. Before accepting his

plea, the Magistrate fully advised the defendant of his various constitutional rights. The

Magistrate also inquired of the United States Attorney as to the “factual basis” for the

charge against the defendant. The United States Attorney then stated that on July 17,



       1
            8 U.S.C. § 1101(a)(43)(B) reads as follows: “The term ‘aggravated felony’ means
. . . illicit trafficking in a controlled substance (as defined in section 802 of Title 21),
including a drug trafficking crime as defined in section 924(c) of Title 18).”

                                             2
1992, “the defendant was convicted of sale and transportation of marijuana, an aggravated

felony, in California [and] as a result, the defendant was removed from the United States

on February 16, 1999, and was not to return.” At that juncture, the defendant again

entered a plea of guilty, and the Magistrate then accepted his plea and “adjudged [him]

guilty of the offense.” The case was then referred to the Probation Department for a

presentence report.

       Pursuant to U.S.S.G. § 2L1.2(a), the presentence report determined that the

defendant’s base offense level was 8 levels. The report then recommended that the

defendant receive a 16-level increase in his offense level pursuant to U.S.S.G. §

2L1.2(b)(1)(A) because of his 1992 California conviction for selling marijuana, which

constituted a “drug trafficking offense” for sentencing purposes. His offense level was

then reduced by three levels for acceptance of responsibility, all of which resulted in an

adjusted offense level of 21 (8 + 16 - 3 = 21). With a Criminal History Category of IV,

defendant’s guideline sentencing range was 57 to 71 months imprisonment.

       Counsel for the defendant filed no objection to the presentence report. Defendant,

however, filed a pro se objection to the recommendation that his offense level be raised

16 levels under U.S.S.G. § 2L.1.2(b)(l)(A), on the ground that his 1992 California

conviction did not result in a sentence of more than 13 months imprisonment, as required

by U.S.S.G.§ 2L.1.2(b)(1)(A). The district court overruled defendant’s objection, noting

that though defendant’s 1992 California conviction initially resulted in placing him on 36

months probation, his probation was later revoked and he was then sentenced to two years


                                             3
imprisonment. The defendant, pro se, also objected to the recommendation in the

presentence report that his Criminal History Category be set at IV. That objection was

also overruled. Neither of these matters is raised on appeal. The district court then

sentenced defendant to imprisonment for 57 months to be followed by a term of

supervised release.2

       On appeal, counsel for the defendant requests that we vacate defendant’s sentence

and remand for re-sentencing on the ground that the 16-level increase in defendant’s

offense level was incorrect. In support of his request for resentencing, the defendant

relies on two matters: (1) counsel for the defendant at sentencing rendered

constitutionally ineffective assistance to the defendant when he failed to object to the

presentence report’s recommendation that defendant’s offense level be raised by 16 levels

on the basis of his 1992 California conviction; and (2) the district court erred in

increasing defendant’s offense level by 16 levels based on his 1992 California conviction.

The defendant agrees that since no objection was made at sentencing to the 16 level

increase in his offense level based on his 1992 California conviction, we review the

district court’s increase of defendant’s base offense level for 16 levels for “plain error.” 3


       2
         We note that after defendant pled guilty to the charge set forth in the
information, he became dissatisfied with his appointed counsel and asked that he be
replaced. The district court then appointed new counsel who represented defendant at his
sentencing. In this appeal, the defendant is represented by the Federal Public Defender's
office.
       3
         While counsel recognizes that the plain error rule is the law of this Circuit,
counsel states that the plain error standard should not apply, and he seeks to “preserve”
                                                                                (continued...)

                                               4
       We elect to first consider the issue of whether the district court committed plain

error in raising defendant’s base offense level by 16 levels based on his 1992 California

conviction. To satisfy the plain error standard, the defendant must prove that the district

court committed error that was plain and affected substantial rights. United States v.

Haney, 318 F.3d 1161, 1166 (10th Cir. 2003)(en banc). And even if these tests are met,

we may correct such error only if the error “seriously affects the fairness, integrity, or

public reputation of judicial proceedings,” Id. at 1166-67 (quoting United States v. Olano,

507 U.S. 725, 732 (1993).

       U.S.S.G. § 2L.1.2(a) provides that the base offense level for one who unlawfully

enters or remains in the United States shall be 8 levels, and U.S.S.G.§ 2L.1.2(b)(1)(a)

provides further that if the person has been previously deported, or unlawfully remained,

in the United States after he has been convicted for a felony that is a “drug trafficking

offense” for which the sentence imposed exceeded 13 months, the base offense level shall

be increased by 16 levels. Under the heading “Commentary,” note 1(B)(iv) states that a

“drug trafficking offense” means an “offense under federal, state or local law that

prohibits the manufacture, import, export, distribution, or dispensing of a controlled

substance (or a counterfeit substance) or the possession of a controlled substance (or a

counterfeit substance) with an intent to manufacture, import, export, distribute, or

dispense.”



       3
         (...continued)
that issue for possible review by the U.S. Supreme Court.

                                              5
       As stated, the defendant, with counsel, pled guilty to an information charging him

with having been found in New Mexico after he had previously been deported from the

United States because he had been convicted of an “aggravated felony,” identified in the

information as a “Delivery of a Controlled Substance.” 8 U.S.C. § 1101 (43)(B) provides

that an “aggravated felony means . . . illicit trafficking in a controlled substance (as

defined in Section 802 of Title 21), including a drug trafficking crime (as defined in

Section 924(c) of Title 18).” That conviction occurred in a California state court in 1992

when defendant was convicted of violating California Health & Safety Code § 11360(a),

which provides as follows:

       §11360. Transportation, sale, import, give away, etc: punishment.
       (a) Except as otherwise provided by this section or as authorized by law,
       every person who transports, imports into this state, sells, furnishes,
       administers, or gives away, or offers to transport, import into this state or
       transport any marijuana shall be punished by imprisonment in the state
       prison for a period of two, three or four years.

       On the record as made in the district court, we conclude that the district court did

not commit plain error when it followed the presentence report's recommendation that

defendant’s base offense level of 8 be raised by 16 levels because of his 1992 California

conviction for the sale of marijuana. By pleading guilty to the criminal information filed

in the instant case the defendant admitted, inter alia, that he had been found guilty in

1992 in California of an aggravated felony described in the information as “Delivery of a

Controlled Substance,” which is a form of “drug trafficking.” Further, that particular

allegation was an essential element of the crime charged in the information. In addition,



                                               6
at the time of his arraignment before the Magistrate, the United States Attorney, when

requested by the Magistrate to state the “factual basis” for the case, stated that it was for

the “sale and transportation of marijuana.” After having been so advised by the United

States Attorney, the defendant persisted in his plea of guilty to the crime charged in the

information, and the Magistrate accepted his plea and adjudged the defendant to be guilty

of the crime charged. Although not in itself controlling, an “Abstract of Judgment”

contained in the presentence report stated that the defendant was convicted in the

Superior Court of California on July 17, 1992, of “Sale Trans. Marij.” Counsel’s reliance

on Ninth Circuit cases such as United States v. Navidad Marcos, 367 F. 3d 903 (9th Cir.

2004) is misplaced. In that case, for instance, defendant’s counsel did object at

sentencing to the 16-level enhancement of his base offense level, and the matter was

thereby preserved for direct appeal. Hence, the Ninth Circuit in that case was not

concerned with the “plain error” argument, as we are. All things considered, based on the

present record, the district court did not commit “plain error”when it increased

defendant’s offense level by 16 levels because of his 1992 California conviction. United

States v. Millan-Torres, 139 Fed. Appx. 105 (10th Cir. 2005), cert. denied, 546 U.S. 1023

(2005).

       In this appeal, the defendant also asserts that he is entitled to re-sentencing because

the attorney representing him at sentencing did not object to the 16-level enhancement

and in so doing was “constitutionally ineffective.” In our view, based on the record

before us, defendant has failed to show that his counsel at sentencing was


                                               7
“constitutionally ineffective.” A reasonably competent counsel could have concluded

that defendant was convicted of selling marijuana in California in 1992. In this regard,

see also Hickman v. Spears, 160 F.3d 1269, 1273-75 (10th Cir. 1998) where we held

that counsel was not ineffective because he failed to object to an enhanced sentence under

Oklahoma Habitual Criminal Act, when there was no clear legal authority supporting

plaintiff’s argument.4

       Pursuant to Fed. R. App. P. 28(j), the defendant by supplemental authority filed

after oral argument, submitted for our consideration United States v. Ruiz-Rodriguez,

_____ F. 3d _____, 2007 Westlaw 2193677 (10th Cir. Aug. 1, 2007). In so doing,

counsel states that “this decision spells out for the panel the directions it might give to the

parties and the district court, should it reverse Mr. Garcia-Castaneda’s sentence and

remand the case for re-sentencing.” However, for the reasons as already stated, we

decline to remand for resentencing.

       Judgment affirmed.

                                                   Entered for the Court


                                                   Robert H. McWilliams
                                                   Senior Circuit Judge




       4
          We recognize that a claim for ineffective assistance of counsel is generally to be
brought in a collateral proceeding, and not on direct appeal. At the same time, in United
States v. Galloway, 56 F.3d 1239, 1240 (10th Cir. 1995), we stated that “in rare instances
an ineffectiveness of counsel claim may need no further development prior to review on
direct appeal.” We believe that the “exception to the rule” applies in the present case.

                                               8
