     Case: 11-20293     Document: 00511885941         Page: 1     Date Filed: 06/13/2012




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

                                                                            FILED
                                                                           June 13, 2012
                                     No. 11-20293
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

ALEJANDRO MOLINA PAVON, also known as Alejandro P. Molina, also known
as Alejandro Pavon Molina, also known as Alejandro Molina-Pavon, also known
as Hipolito Alexander Pavon-Molina, also known as Hipolito Alexander Pavon
Molina, also known as Alexander Hipolito, also known as Alejandro Hernandez
Pavon,

                                                  Defendant-Appellant


                   Appeals from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:10-CR-717-1


Before BENAVIDES, STEWART, and HIGGINSON, Circuit Judges.
PER CURIAM:*
        Alejandro Molina Pavon challenges his guilty plea conviction and sentence
for illegal presence in the United States under 8 U.S.C. § 1326(b)(2). The
Government alleged in the factual basis for his plea that Pavon was previously
removed following a 1999 Texas conviction for delivery of less than one gram of


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 11-20293

cocaine by actual transfer. Pavon admitted the fact of the 1999 conviction
during the plea hearing.
      First, Pavon contends that he received ineffective assistance of counsel
from the attorney who represented him in the district court. This court rarely
reviews such claims raised for the first time on direct appeal, and we decline to
do so here. See United States v. Kizzee, 150 F.3d 497, 502 (5th Cir. 1998).
      Second, Pavon contends for the first time on appeal that the district court
erred by accepting his guilty plea under § 1326(b)(2) and by imposing a sentence
greater than two years, repeating an ineffectiveness claim that he had no prior
conviction for an aggravated felony. Pavon contends that his 1999 cocaine
offense was not an aggravated felony because Texas does not classify it as such
and because his offense was treated as a Class A misdemeanor as part of a plea
agreement in the case. However, the Texas offense of delivery of cocaine by
actual transfer, in any amount, is an aggravated felony for purposes of
§ 1326(b)(2). See 8 U.S.C. § 1101(a)(43)(B) (defining “aggravated felony” to
include “a drug trafficking crime” as defined in 18 U.S.C. § 924(c)); § 924(c)(2)
(defining “drug trafficking crime” as “any felony punishable under the Controlled
Substances Act”); 21 U.S.C. §§ 802(8) & (11), 841(a)(1) (criminalizing delivery of
a controlled substance under the Controlled Substances Act (CSA)); 21 U.S.C.
§ 812(c) (identifying cocaine as a Schedule II narcotic); § 841(b)(1)(C) (providing
punishment of up to 20 years for distribution of cocaine in any amount). Federal
law controls whether an offense is punishable as a felony under the CSA. Lopez
v. Gonzales, 549 U.S. 47, 55 (2006). Pavon admitted the fact of the 1999 Texas
conviction during his rearraignment. We find no error, plain or otherwise.
      Third, Pavon asserts for the first time on appeal that the district court
erred in relying on the PSR during sentencing. He asserts that the PSR was
insufficient “to base a sentence on unless the defendant specifically stipulated
to each and every alleged fact in the reports.” Pavon was not required to admit
the sentencing facts; the district court was entitled to find them by a

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                                   No. 11-20293

preponderance of the evidence. See United States v. Johnson, 648 F.3d 273, 277
(5th Cir. 2011) (noting that due process requires only that sentencing facts be
established by a preponderance of the evidence); United States v. Hernandez, 633
F.3d 370, 374 (5th Cir.) (holding that a sentence within the statutory maximum
based upon judge-found facts by a preponderance of the evidence does not violate
the Sixth Amendment), cert. denied, 131 S. Ct. 3006 (2011). The court was
entitled to adopt the findings in the PSR unless Pavon showed them to be
materially unreliable. See United States v. Ford, 558 F.3d 371, 377 (5th Cir.
2009); United States v. Cooper, 274 F.3d 230, 239 (5th Cir. 2001) (holding that
a district court is entitled to rely on the presentence report and to adopt its facts
“without further inquiry” if they had “an adequate evidentiary basis” and the
defendant did “not present rebuttal evidence”). The existing sentencing record
shows no rebuttal of the evidence in the PSR or that it was materially
unreliable. We find no error, plain or otherwise.
      AFFIRMED.




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