                                                             United States Court of Appeals
                                                                      Fifth Circuit
                                                                    F I L E D
                    UNITED STATES COURT OF APPEALS
                                                                    March 29, 2007
                         FOR THE FIFTH CIRCUIT
                                                               Charles R. Fulbruge III
                                                                       Clerk


                             No. 05-41551



     UNITED STATES OF AMERICA,

                                           Plaintiff-Appellee,

                                   v.

     DIEGO DUQUE-HERNANDEZ,

                                           Defendant-Appellant.



         Appeal from the United States District Court for the
                      Southern District of Texas
                              (05-CR-886)



Before REAVLEY, DeMOSS, and BENAVIDES, Circuit Judges.

PER CURIAM:*


     Diego     Duque-Hernandez    challenges     the     district    court’s

application of a 12-level sentencing enhancement.            We vacate the

sentence and remand for resentencing.

             I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

     Duque-Hernandez pled guilty to a single count of illegal

reentry    after   deportation.    Using   the    2004    edition    of    the


     *
       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this opinion should not be published and is not precedent except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.
Sentencing Guidelines, the presentence report (“PSR”) recommended

a   12-level   increase   to   his    offense     level   because    his   prior

deportation followed a felony drug conviction.                See U.S.S.G. §

2L.1.2(a). The district court assessed a Guidelines sentence after

assessing the recommended 12-level increase.

                               II. DISCUSSION

      Duque-Hernandez     argues     that   the   district   court    erred   by

applying the 12-level enhancement because his prior Utah conviction

for offering to sell drugs is not a drug trafficking conviction

under the Sentencing Guidelines.             See USSG § 2L1.2(b)(1)(B).

Because Duque-Hernandez did not properly preserve his argument

below, we review for plain error.1           See United States v. Garza-

Lopez, 410 F.3d 268, 272 (5th Cir. 2005).                 Under plain error

review, Duque-Hernandez must show (1) that an error occurred, (2)

that the error was plain, which means “clear” or “obvious,” and (3)

that the error affected his substantial rights.              United States v.

Cotton, 535 U.S. 625, 631–32 (2002).          “If all three conditions are



      1
      Based on defense counsel’s statements to the district court
as to the correctness of the PSR and lack of objections, the
government argues for waiver/invited error, barring review. Waiver
is the “intentional relinquishment or abandonment of a known
right.” United States v. Arviso-Mata, 442 F.3d 382, 384 (5th Cir.
2006) (citations omitted) (emphasis added). Under invited error
doctrine, a defendant cannot appeal alleged errors he “invited or
induced.”   United States v. Green, 272 F.3d 748, 754 (5th Cir.
2001).   We are not persuaded that defense counsel’s statements
operated so as to constitute a waiver, nor an invitation to the
court to make the particular error; accordingly, we review for
plain error.

                                       2
met, an appellate court may then exercise its discretion to notice

a forfeited error, but only if . . . the error seriously affects

the    fairness,         integrity,     or     public      reputation       of     judicial

proceedings.”            Id. at 631 (internal quotations and citations

omitted).

       Under the categorical approach of United States v. Taylor, 495

U.S. 575, 602 (1990), a court “looks to the elements of the prior

offense, rather than to the facts underlying the conviction, when

classifying a prior offense for sentence enhancement purposes.”

Garza-Lopez,        410    F.3d   at    273.        The    court    may    also    consider

documents        such     as    the    charging        instrument         and     the     jury

instructions.        Id.       A court may not, however, rely solely on the

description of the offense contained in the PSR.                          Id. at 274.

       The district court had only the PSR and judgment of conviction

before it.        The PSR asserted that the Utah court convicted Duque-

Hernandez of a “felony drug trafficking offense,” but the judgment

does       not   conclusively     establish         that   the     conviction      involved

distribution of a controlled substance.                          The judgment merely

indicates that Duque-Hernandez was convicted of violating the

applicable        Utah    statute,     which       included   offenses          outside    the

Guidelines definition of a “drug trafficking offense.”                             See Utah

Code Ann. § 58-37-8(1).2              Duque-Hernandez claims that he was not,


       2
      Specifically, the judgment indicates that Duque-Hernandez
“[a]ttempted Distribute/Offer/Arrange to Dist,” which lists in
abbreviated form the possible violations within the Utah statute.

                                               3
in fact, convicted of a qualifying offense, and supplemented the

record to add a “Statement by Defendant in Advance of Guilty Plea”

from the Utah criminal proceeding in which he admits that he was

pleading guilty to “attempt[ing] to offer, consent, agree or

arrange to distribute a controlled substance . . . .”               We also

allowed the government to supplement the record with the charging

instrument, which suggests that the defendant was offering to sell

a controlled substance.

     Offering to sell a controlled substance lies outside section

2L1.2’s definition of “drug trafficking offense,” because section

2L1.2 “covers only the manufacture, import, export, distribution,

or dispensing of a controlled substance (or possession with the

intent to do any of these things).”        Garza-Lopez, 410 F.3d at 274.

Merely offering to do one of the enumerated acts is not sufficient.

Accordingly, the district court erred in finding that Duque-

Hernandez’s prior conviction was for a drug-trafficking offense as

defined by section 2L1.2.       This error is clear and obvious under

the plain language of the Guidelines, and so we must ask whether

the error affected Gonzales’s substantial rights.          See id. at 275

(finding that court’s reliance on PSR was plain error).

     “[W]e   must   determine   ‘whether    the   defendant   can   show   a

reasonable   probability    that,   but     for   the   district    court’s

misapplication of the Guidelines, [he] would have received a lesser




                                    4
sentence.’” Id. at 275 (quoting United States v. Villegas, 404 F.3d

355, 364 (5th Cir. 2005)(per curiam)).           Without the erroneous 12-

level enhancement, Duque-Hernandez would not have faced more than

an eight-level enhancement.         See U.S.S.G. § 2L1.2(b)(1)(C).       That

enhancement, coupled with the same acceptance of responsibility

reduction and criminal history category, would have produced a

Guideline range of 18 to 24 months imprisonment.               Instead, the

district court sentenced Duque-Hernandez to 30 months imprisonment

and three years of supervised release.           Given the imposition of a

sentence    greater   than   that    otherwise    recommended,    the   error

affected Duque-Hernandez’s substantial rights and, consequently,

seriously affects the integrity of the judicial proceedings.              See

Garza-Lopez, 410 F.3d at 275 (holding that erroneous enhancement

for prior    drug-trafficking       offense   resulting   in   substantially

different sentence affected fairness of judicial proceedings).

     Duque-Hernandez     also   challenges     the   constitutionality     of

section 1326(b)’s treatment of prior felony and aggravated felony

convictions as sentencing factors rather than elements of the

offense that must be found by a jury in light of Apprendi v. New

Jersey, 530 U.S. 466 (2000).          As Duque-Hernandez concedes, this

argument is foreclosed by Almendarez-Torres v. United States, 523

U.S. 224, 235 (1998), and was only raised here in order to preserve

it for further review.

                             III. CONCLUSION


                                       5
     For   the   foregoing   reasons,   we   VACATE   Duque-Hernandez’s

sentence, and REMAND for resentencing.




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