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

                                                 FILED
                                                                            July 28, 2009
                                     No. 08-11047
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff–Appellee,

v.

JORGE ADRIAN ROMO,

                                                   Defendant–Appellant.


                   Appeal from the United States District Court
                        for the Northern District of Texas
                            USDC No. 2:08-CR-36-ALL


Before KING, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
       Jorge Adrian Romo appeals the sentence imposed following his guilty plea
conviction for illegal reentry following deportation in violation of 8 U.S.C.
§ 1326(a) and (b)(1). He argues that the district court plainly erred in enhancing
his sentence pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(I) based upon his prior state
conviction for violating California Health and Safety Code § 11379.6(a).
Specifically, Romo argues that § 11379.6(a) does not constitute a “drug
trafficking offense” under § 2L1.2(b)(1)(A)(I) because California case law and

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 08-11047

pattern jury instructions establish that the statute punishes not only the
manufacturing of methamphetamine but also acts done in the preparation of
making methamphetamine and does not require the possession of a controlled
substance.
      As Romo concedes, because he did not object to the § 2L1.2 enhancement
in the district court, our review of this question is for plain error. See United
States v. Campos-Maldonado, 531 F.3d 337, 339 (5th Cir.), cert. denied, 129 S.
Ct. 328 (2008). Under the plain error standard, Romo must establish (1) error,
(2) that is clear or obvious, and (3) that affects substantial rights. See United
States v. Garza-Lopez, 410 F.3d 268, 272 (5th Cir. 2005). If these conditions are
met, we “may exercise [our] discretion to correct the error only if the error
seriously affects the fairness, integrity, or public reputation of judicial
proceedings.” Id. (internal quotation marks omitted).
      We need not decide whether California Health and Safety Code
§ 11379.6(a) constitutes a “drug trafficking offense” under § 2L1.2(b)(1)(A).
When considering whether an offense constitutes a “drug trafficking offense,” a
district court “may consider the statutory definition of the predicate offense, the
charging paper, and the jury instructions.” Garza-Lopez, 410 F.3d at 273. The
“felony complaint” for Romo’s state conviction, which was included in the record
on   appeal,1   charged    that,        inter   alia,    the   crime     of    “manufacturing
methamphetamine” in violation of § 11379.6(a) was committed by Romo “who did
unlawfully manufacture, compound, convert, produce, derive, process and
prepare [m]ethamphetamine.” Romo pleaded guilty to that charge, and the
abstract of the judgment demonstrates that he was convicted of that charge.
Pursuant to California law, Romo’s plea of guilty to the conjunctively-listed
offenses   included    a   plea    of     guilty    to   the   offense    of   manufacturing



      1
        The clerk of this court granted Romo’s unopposed motion to supplement the record
on appeal with documents relating to his prior state conviction.

                                                2
                                  No. 08-11047

methamphetamine. See People v. Mendias, 21 Cal. Rptr. 2d 159, 163-64 (Cal. Ct.
App. 1993). Accordingly, there was no clear or obvious error by the district court
in considering his guilty-plea conviction as conduct constituting a drug
trafficking offense under § 2L1.2(b)(1)(A)(I).
      In light of the record, as supplemented on appeal, Romo has failed to show
that any error in enhancing his offense level under § 2L2.1 is clear or obvious.
See United States v. Fernandez-Cusco, 447 F.3d 382, 388 (5th Cir. 2006). The
district court’s judgment is AFFIRMED.




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