     Case: 14-41049      Document: 00513236421         Page: 1    Date Filed: 10/19/2015




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

                                                                                   FILED
                                    No. 14-41049                             October 19, 2015
                                  Summary Calendar
                                                                              Lyle W. Cayce
                                                                                   Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

SEGUNDO BOBADILLA-CHUCARI,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 7:14-CR-280-1


Before JONES, DENNIS, and GRAVES, Circuit Judges.
PER CURIAM: *
       Segundo Bobadilla-Chucari appeals his 41-month within-guidelines
sentence that was imposed following his conviction for illegal reentry after
deportation.     He challenges the district court’s application of the 16-level
enhancement set forth in U.S.S.G. § 2L1.2(b)(1)(A)(i). For the first time on
appeal, he argues that his 2002 federal drug conspiracy conviction does not
constitute a “drug trafficking offense” for purposes of § 2L1.2(b)(1)(A)(i)


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 14-41049     Document: 00513236421      Page: 2   Date Filed: 10/19/2015


                                  No. 14-41049

because the conviction could be obtained without proof of remuneration. He
also argues that the conviction does not constitute a “drug trafficking offense”
for purposes of § 2L1.2(b)(1)(A)(i) because the conviction could be obtained
without proof of an overt act in furtherance of the conspiracy. He concedes that
these arguments are foreclosed by circuit precedent, but he raises them to
preserve for further appellate review. Bobadilla-Chucari also challenges the
substantive reasonableness of his sentence, arguing that his 2002 federal drug
conspiracy conviction was stale and that the district court failed to consider his
personal circumstances. The Government moves for summary affirmance or,
alternatively, for an extension of time to file an appellate brief.
   As Bobadilla-Chucari concedes, his challenges to his sentence are subject
to plain error review because he did not object on these grounds in the district
court. See United States v. Moreno-Florean, 542 F.3d 445, 448 (5th Cir. 2008).
To demonstrate plain error, Bobadilla-Chucari must show a forfeited error that
is clear or obvious and that affects his substantial rights. See Puckett v. United
States, 556 U.S. 129, 135 (2009). If he makes such a showing, we have the
discretion to correct the error but only if it seriously affects the fairness,
integrity, or public reputation of judicial proceedings. See id.
   Bobadilla-Chucari correctly states that his arguments challenging the
application of § 2L1.2(b)(1)(A)(i) are foreclosed by United States v. Martinez-
Lugo, 782 F.3d 198, 204-05 (5th Cir. 2015), and United States v. Rodriguez-
Escareno, 700 F.3d 751, 753-54 (5th Cir. 2012). In Martinez-Lugo, 782 F.3d at
204-05, we held that application of § 2L1.2(b)(1)(A)(i) is warranted regardless
whether a conviction for the prior offense required proof of remuneration or
commercial activity. In Rodriguez-Escareno, 700 F.3d at 753-54, we held that
both a conviction for a federal drug trafficking offense and a conviction for the




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                                No. 14-41049

federal crime of conspiring to commit such an offense will support an
enhancement under § 2L1.2(b)(1)(A)(i).
      Regarding the substantive reasonableness of Bobadilla-Chucari’s
sentence, the district court listened to the arguments in mitigation but found
that a sentence at the bottom of his guidelines range was appropriate. “[T]he
sentencing judge is in a superior position to find facts and judge their import
under [18 U.S.C.] § 3553(a) with respect to a particular defendant.” United
States v. Campos-Maldonado, 531 F.3d 337, 339 (5th Cir. 2008). Additionally,
the “staleness of a prior conviction used in the proper calculation of a
guidelines-range sentence does not render a sentence substantively
unreasonable and does not destroy the presumption of reasonableness that
attaches to such sentences.” United States v. Rodriguez, 660 F.3d 231, 234 (5th
Cir. 2011). Bobadilla-Chucari has not shown sufficient reason for this court to
disturb the presumption of reasonableness applicable to his sentence. See
United States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009).
   Although we conclude that the judgment may be affirmed without further
briefing, summary affirmance is not appropriate. See United States v. Holy
Land Found. for Relief & Dev., 445 F.3d 771, 781 (5th Cir. 2006). Thus, the
judgment of the district court is AFFIRMED. The Government’s motion for
summary affirmance and the alternative motion for an extension of time to file
a brief are DENIED.




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