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

                                                                FILED
                                                                April 29, 2008
                                No. 06-41620
                                                          Charles R. Fulbruge III
                                                                  Clerk
UNITED STATES OF AMERICA

                                         Plaintiff - Appellee

v.

FELIPE PERALES-SOLIS

                                         Defendant - Appellant


                Appeal from the United States District Court
                     for the Southern District of Texas
                           No. 5:06-CR-214-ALL


Before KING, WIENER, and ELROD, Circuit Judges.
PER CURIAM:*
     Defendant-Appellant Felipe Perales-Solis appeals his sentence for illegal
reentry into the United States following deportation in violation of 8 U.S.C.
§ 1326. He contends that the district court erred by enhancing his sentence
twelve levels pursuant to § 2L1.2(b)(1)(B) of the United States Sentencing




     *
      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should not be published and is not precedent except under the limited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. 06-41620

Guidelines (the “Guidelines”)1 because his 2004 Texas conviction does not
constitute a drug trafficking offense. We AFFIRM.
                              I. BACKGROUND
      On January 23, 2006, Perales-Solis, a native and citizen of Mexico, was
arrested for being unlawfully present in the United States.         Perales-Solis
admitted that he had been voluntarily returned to Mexico by the United States
Border Patrol eleven times.     He had also been previously deported twice,
including a June 19, 2005 deportation subsequent to pleading guilty on October
21, 2004, in Texas state court and being sentenced to eight months of
imprisonment for Delivery of Marihuana in violation of Texas Health and Safety
Code § 481.120. On April 20, 2006, Perales-Solis pleaded guilty, without a
written plea agreement, to illegal reentry after having been removed in violation
of 8 U.S.C § 1326.
      Pursuant to the Guidelines, the presentence investigation report (the
“PSR”) recommended a base offense level of eight for Perales-Solis.          U.S.
SENTENCING GUIDELINES MANUAL § 2L1.2(a) (2005). Based on his 2004 Texas
conviction, the PSR recommended a twelve-level enhancement under §
2L1.2(b)(1)(B) of the Guidelines. After a three-level reduction for acceptance of
responsibility, his total offense level was seventeen. The PSR set Perales-Solis’s
criminal history category at V and recommended a Guidelines sentencing range
from forty-six to fifty-seven months of imprisonment.
      Perales-Solis objected to the PSR’s sentencing recommendations, arguing
that his sentence under § 1326(b) was unconstitutional under Apprendi v. New
Jersey, 530 U.S. 466 (2000), and that the twelve-level enhancement was
improper on the grounds that his Texas conviction was not within the
Guidelines’ definition of a drug trafficking offense. Specifically, he contended



      1
     All references are to the 2005 edition of the U.S. SENTENCING GUIDELINES
MANUAL (2005), which was used by the district court.

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that the definition of “delivery” under Texas law encompasses an “offer to sell,”
TEX. HEALTH & SAFETY CODE § 481.002(8), conduct which is not covered by the
definition of a drug trafficking offense. See § 2L1.2(a) cmt. n.1(B)(iv). Further,
Perales-Solis urged that the state court documents attached to the PSR, the
Texas indictment and judgment, in support of the enhancement were inadequate
to narrow the offense of conviction to one that is necessarily within the
Guidelines’ definition of a drug trafficking offense. Perales-Solis also argued for
a reduction in his sentence due to over representation of his criminal history.
      The district court overruled Perales-Solis’s Apprendi objection and his
objection to the twelve-level enhancement, but reduced his criminal history
category to IV. He was sentenced on October 27, 2006, to thirty-seven months
of imprisonment and three years of supervised release and assessed costs of one
hundred dollars. This timely appeal followed on November 16, 2006.
      While the district court relied only on the PSR, the state court indictment
and judgment, and the statements of the attorneys at sentencing, the
Government supplemented the record on appeal with a certified copy of Perales-
Solis’s judicial confession.2
                                II. DISCUSSION
                                        A.
      Under the Guidelines, the offense level for unlawfully entering the United
States is increased by twelve levels if the defendant was previously deported
after being convicted of a drug trafficking offense that resulted in a sentence of
thirteen months or less of imprisonment. § 2L1.2(b)(1)(B). A “drug trafficking
offense” is defined as “an offense under federal, state, or local law that prohibits
the manufacture, import, export, distribution, or dispensing of a controlled


      2
      Perales-Solis urges us in his reply brief to strike his judicial confession
admitted on the Government’s motion to supplement the record, which we
granted on July 25, 2007. We see no reason to reconsider the ruling on that
motion at this late date.

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substance (or a counterfeit substance) or the possession of a controlled substance
(or counterfeit substance) with intent to manufacture, import, export, distribute,
or dispense.” § 2L1.2, cmt. n.1(B)(iv). Because Perales-Solis properly objected
to the district court’s application of the Guidelines, we review the conclusion that
a prior state conviction constitutes a drug trafficking offense de novo. United
States v. Lopez-Salas, 513 F.3d 174, 178 (5th Cir. 2008).
      Perales-Solis previously pleaded guilty to Delivery of Marihuana in
violation of Texas Health and Safety Code § 481.120 and was sentenced to eight
months in prison. To “deliver” under Texas law is defined broadly to mean “to
transfer, actually or constructively, to another a controlled substance . . .
regardless of whether there is an agency relationship . . . [and] includes offering
to sell a controlled substance . . . .” TEX. HEALTH & SAFETY CODE § 481.002(8).
We have held that a similar provision prohibiting the manufacture and delivery
of other controlled substances, which is subject to the same statutory definition
of “deliver,” see § 481.112, “encompasses both conduct that does constitute a
drug trafficking offense (transferring cocaine) and conduct that does not (offering
to sell cocaine).” United States v. Garcia-Arellano, --- F.3d ----, No. 06-11276,
2008 WL 771709, at *2 (5th Cir. Mar. 25, 2008) (quoting United States v.
Morales-Martinez, 496 F.3d 356, 358 (5th Cir. 2007)). Texas Health and Safety
Code § 481.120 is also such a statute.
      Consequently, as with prior convictions under § 481.112, we must
determine whether Perales-Solis’s conviction under § 481.120 constitutes a drug
trafficking offense.    Generally, we apply the “categorical approach” as
established in Shepard v. United States, 544 U.S. 13 (2005), and Taylor v. United
States, 495 U.S. 575 (1990), to this inquiry. See Lopez-Salas, 513 F.3d at 178;
United States v. Garza-Lopez, 410 F.3d 268, 273–74 (5th Cir. 2005); United
States v. Gutierrez-Ramirez, 405 F.3d 352, 356–57 (5th Cir. 2005). However, in
determining whether an underlying conviction is a drug trafficking offense, we
“may look beyond the statute itself to ‘the terms of the charging document, the

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terms of a plea agreement or transcript of colloquy between judge and defendant
in which the factual basis for the plea was confirmed by the defendant, or to
some other comparable judicial record of this information,’” including a judicial
confession under Texas law. Garcia-Arellano, --- F.3d ----, 2008 WL 771709, at
*2 (quoting Shepard, 544 U.S. at 26) (emphasis added in Garcia-Arellano).
      We have held that when only the fact of conviction along with an
indictment charging the defendant under § 481.112 and alleging the definition
of “delivery” in the conjunctive are before this court, the defendant did not
necessarily plead guilty to the facts in the conjunctive as would be required for
the conviction to constitute a drug trafficking offense under the Guidelines.
Morales-Martinez, 496 F.3d at 358–61. This is so because, under Texas law,
proof of any one means of committing the charged offense, such as merely
offering to sell a controlled substance, conduct outside the Guidelines’ definition
of a drug trafficking offense, could sustain a judgment of conviction for delivery
as defined by § 481.002(8). Id.
      However, in Garcia-Arellano, the appellate record was supplemented with
the indictment charging the defendant under § 481.112 with “delivery” alleged
in the conjunctive, the judgment, and a certified copy of the defendant’s judicial
confession in which the defendant stipulated “that he did ‘knowingly and
intentionally deliver, to-wit, actually transfer, constructively transfer and offer
to sell a controlled substance,’” and “that he ‘committed the offense with which
[he] stand[s] charged exactly as alleged in the indictment . . . .” Garcia-Arellano,
--- F.3d ----, 2008 WL 771709, at *3 (emphasis added in Garcia-Arellano). There,
“the judicial confession clear[ed] up any ambiguity presented by the indictment
and judgment,” and we held that “[b]ecause [the defendant’s] confession
establish[ed] that he possessed, transferred[,] and offered to sell a controlled
substance, his prior conviction qualifie[d] as a drug trafficking offense under the
[G]uidelines.” Id.



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                                   No. 06-41620

      Perales-Solis was similarly charged in the conjunctive with violating
§ 481.120 by “intentionally and knowingly deliver[ing] by actual transfer[,] . . .
constructive transfer[,] . . . [and] by offering to sell more than one-fourth and less
than five pounds of marihuana to R. CORRALES.” The Texas judgment simply
stated that Perales-Solis was convicted of Delivery of Marihuana “by actual
transfer, constructive transfer, and offering to sell marihuana 1/4 oz.–5 lbs.” As
we have held, under Texas law, an indictment charging a defendant in the
conjunctive and a judgment stating the offense of conviction are not sufficient to
narrow that conviction to one that necessarily constitutes a drug trafficking
offense. Morales-Martinez, 496 F.3d at 358–61. However, like the defendant in
Garcia-Arellano, Perales-Solis admitted to the following in a written judicial
confession:
              [T]hat in Harris County, Texas, JOSE SOLIS
              PERALES, hereafter styled the Defendant . . . on or
              about OCTOBER 19, 2004, did then and there
              unlawfully, intentionally and knowingly deliver by
              actual transfer more than one-fourth ounce and less
              than five pounds of marihuana to R. CORRALES.

              It is further presented that . . . the Defendant . . did
              then and there unlawfully, intentionally and knowingly
              deliver by constructive transfer more than one-fourth
              ounce and less than five pounds of marihuana to R.
              CORRALES.

              It is further presented that . . . the Defendant . . . did
              then and there unlawfully, intentionally and knowingly
              deliver by offering to sell more than one-fourth ounce
              and less than five pounds of marihuana to R.
              CORRALES.
Perales-Solis further stipulated, “I understand the above allegations and I
confess that they are true and that the acts alleged above were committed on
October 19, 2004.” (Emphasis added). Finally, Perales-Solis swore, “I have read
the indictment and I stipulate that if the State’s witnesses were sworn in and


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testified, they would testify that I committed each and every element alleged.”
(Emphasis added).
      Thus, like the judicial confession in Garcia-Arellano, Perales-Solis’s
judicial confession clears up any potential ambiguity presented by the
indictment and the judgment and establishes that he actually transferred,
constructively transferred, and offered to sell marihuana. See id. Consequently,
his 2004 Texas conviction under § 481.120 constitutes a drug trafficking offense
under § 2L1.2(b)(1)(B) of the Guidelines.
                                       B.
      Perales-Solis also challenges the constitutionality of treating 8 U.S.C.
§ 1326(b) as a sentencing factor, as opposed to an independent element of the
crime that must be proven. This argument was rejected in Almendarez-Torres
v. United States, 523 U.S. 224 (1998). He contends that the Supreme Court
would overrule Almendarez-Torres in light of Apprendi v. New Jersey, 530 U.S.
466 (2000), but properly concedes that we have rejected this argument. He
appeals the issue only to preserve it for further review.
                             III. CONCLUSION
      For the foregoing reasons, we AFFIRM the sentence imposed by the
district court.




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