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

                                                FILED
                                                                September 1, 2009
                                No. 08-50945
                              Summary Calendar               Charles R. Fulbruge III
                                                                     Clerk

UNITED STATES OF AMERICA,

                                           Plaintiff-Appellee

v.

CONRRADO ADAME-ROMAN,

                                           Defendant-Appellant


                 Appeal from the United States District Court
                      for the Western District of Texas
                           USDC No. 2:08-CR-19-1


Before GARWOOD, DENNIS and ELROD, Circuit Judges.
PER CURIAM:*
      Conrrado Adame-Roman appeals the 36-month sentence imposed in
September 2008 following his guilty plea conviction for illegal reentry in
violation of 8 U.S.C. § 1326(a) and (b)(1)(2). Adame-Roman argues that the
district court erred in imposing an upward variance from the advisory guidelines
range of 15 to 21 months of imprisonment. He contends that the district court
impermissibly re-characterized his prior state drug offense as a drug-trafficking



      *
      Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
                                   No. 08-50945

offense and that the district court’s “reliance on its own resistance to this Court’s
precedents” constitutes plain error. He contends that the district court therefore
erred by considering an improper factor under 18 U.S.C. § 3553. Essentially, he
argues that his non-guidelines sentence is unreasonable.
      Because Adame-Roman did not ever object below to anything done or said
at the sentencing hearing, to the September 10, 2008 PSR or to the
reasonableness of the sentence imposed, review is for plain error. See United
States v. Mondragon-Santiago, 564 F.3d 357, 361 (5th Cir. 2009). A plain error
is a forfeited error that is clear or obvious and affects the defendant’s substantial
rights. Id. When those elements are met, this court has the discretion to correct
the error only if it “seriously affects the fairness, integrity, or public reputation
of judicial proceedings.” Id. (citation omitted).
      The prior conviction in question was an April 2005 Texas guilty plea
conviction for delivery of a controlled substance for which the original sentence
was three years’ deferred adjudication probation; in January 2006 his probation
was revoked and Adame-Roman was sentenced to six years’ imprisonment. He
was released on parole on April 2, 2007 (parole term to expire January 2012) and
was deported to Mexico on April 28, 2007 (he thereafter reentered the United
States without permission and was found therein in December 2007).
      The PSR reflects the Texas information to which Adame-Roman plead
guilty alleged that on January 23, 2003, he did “. . . intentionally or knowingly
deliver, by constructive transfer, to Raul Luna, a controlled substance, namely,
cocaine, in an amount of one gram or more but less than four grams;
intentionally or knowingly deliver, by actual transfer, to Raul Luna, a controlled
substance, namely, cocaine, in an amount of one gram or more but less than four
grams; intentionally or knowingly deliver, by offer to sell, to Raul Luna, a
controlled substance, namely, cocaine, in an amount of one gram or more but less
than four grams. . . .” The PSR goes on to state respecting this conviction:
“According to the stipulation of evidence and judicial confession section in

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defendant’s plea agreement, Adame-Roman in open Court and under oath,
judicially confesses to the offense(s) alleged in the indictment or complaint and
information and admits that he/she committed each and every element alleged
in the complaint and information and that he was guilty as charged. The
defendant pleads true to enhancement allegations and special issues.”
      At sentencing the district court expressly accepted the PSR’s calculation
of the adjusted offense level as 10, and criminal history category of IV, with
resulting advisory guideline range of 15 to 21 months’ imprisonment (the district
court did correct the PSR’s misstatement of the statutory maximum sentence).
The court observed that under Texas law the offense of delivery of a controlled
substance under Texas Health & Safety Code § 481.112(a) could be committed
by offering to sell as well as by actual or constructive transfer, id. at §
481.002(8),1 and that this court had held that as a categorical matter a delivery
conviction under section 481.112(a) could not be considered “a drug trafficking
offense” under U.S.S.G. § 2L1.2(b)(1)(A)(i), as defined in Application Note
1(B)(iv), unless the state record appropriately reflected that the conviction was
not based merely on an offer to sell. The district court recognized that in United
States v. Garcia-Arellano, 522 F.3d 477, 481 (5th Cir. 2008), this court held that
a written judicial confession that expressly and specifically stated that the


      1
       Texas Health & Safety Code § 481.112(a) provides:
      “Except as authorized by this chapter, a person commits an offense
      if the person knowingly manufactures, delivers, or possesses with
      intent to deliver a controlled substance listed in Penalty Group 1
      [which includes cocaine].”

Section 481.002(8) states that:
      “‘Deliver’ means to transfer, actually or constructively, to another a
      controlled substance, counterfeit substance, or drug paraphernalia,
      regardless of whether there is an agency relationship. The term
      includes offering to sell a controlled substance, counterfeit
      substance, or drug paraphernalia.”


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defendant did “actually transfer, constructively transfer and offer to sell
controlled substance” (emphasis added), sufficed to show that the offense
qualified as a “drug trafficking offense” under section 2L1.2(b)(1)(A)(i), but
distinguished that decision because there “the defendant actually in the written
judicial confession confessed to actually transferring, constructively transferring
and offering to sell drugs” while “in this case the defendant just admits to the
allegations contained in the information.”      So, the district court said, that
although that specific guidelines issue was “resolved in the defendant’s favor;
but I can also take that into account in determining whether the guidelines are
appropriate.   So its kind of a little bit of both.”   At the conclusion of the
sentencing hearing, the district court, just before pronouncing the sentence,
observed as follows:
      “I look at your background; and it’s very troubling and very
      troubling and very disturbing. I’m also disturbed by the fact that
      unfortunately based on Fifth Circuit law your [Texas] delivery case
      doesn’t count as a delivery case even though that’s what it actually
      was.

      So based on the history and characteristics of the defendant, the
      true seriousness of the offense, based on the delivery charge that
      can’t count as a drug trafficking offense, the need to promote respect
      for the law and the need to provide just punishment the Court finds
      that the advisory guidelines [15-21 months] are not adequate and
      that a fair and reasonable sentence can only be achieved by a
      sentence selected from outside of the advisory range.”
      The district court did not clearly or obviously err in saying that
defendant’s Texas conviction was a conviction for delivery under section 481.112
and that under Texas law it was actually a delivery case.          Nor do we see
anything clearly or obviously unreasonable in the district court’s implicit
conclusion that defendant’s Texas offense though not quite “a drug trafficking
offense” under section 2L1.2(b)(1)(A)(i), nevertheless had some substantial
similarities thereto relevant to the seriousness of the offense. See, e.g., U.S. v.
Ford, 509 F.3d 714, 715, 717 (5th Cir. 2007) (Texas offense of “possesses with

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intent to deliver a controlled substance” under section 481.112(a) “is
indistinguishable from the offense of ‘possession with intent to distribute,’ one
of the offenses listed in USSG’s definition of a controlled substance offense;”
distinguishing case where the Texas conviction was for “just delivery”). See also
Vasquez-Martinez v. Holder, 564 F.3d 712, 717-19 (5th Cir. 2009). And see
U.S.S.G. Amendment 722, effective November 1, 2008, which “clarifies that an
‘offer to sell’ a controlled substance is a ‘drug trafficking offense’ for purposes of
subsection (b)(1) of § 2L1.2 . . .” (emphasis added). And, it is neither plain nor
obvious that the district court’s 36 month sentence either amounts to essentially
or practically the same thing as treating appellant’s Texas § 481.112(a)
conviction as being “a drug trafficking offense” under section 2L1.2(b)(1)(A)(i) or
constitutes an unreasonably harsh sentence. As appellant correctly admits
(brief, p.14), the appropriate guideline range for him, considering his Texas
section 481.112(a) conviction as “a drug trafficking offense” under section
2L1.2(b)(1)(A)(i) would have been 63 to 78 months.2
      The district court in this case properly calculated the sentencing guideline
range but concluded that a sentence within that range would be insufficient to
achieve specific sentencing objectives in light of § 3553(a). The district court
provided specific reasons for varying upward from the guidelines range,
including Adame-Roman’s prior state court drug conviction.
      In U.S. v. Tzep-Mejia, 461 F.3d 522 (5th Cir. 2006), we upheld an
analogous approach to that taken by the district court here.
      We previously have noted that a district court may rely upon a factor
already incorporated into the guidelines range to justify a non-guidelines
sentence, see United States v. Williams, 517 F.3d 801, 811 & n.55 (5th Cir. 2008),


      2
       See § 2L1.2, application note 1(B)(vii). “The length of the sentence
imposed includes any term of imprisonment given upon revocation of probation,
parole, or supervised release.” Here on revocation of probation or parole
appellant was sentenced to six years by the Texas court.

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                                  No. 08-50945

and may impose a non-guidelines sentence based upon its dissatisfaction with
the guidelines sentencing range. See United States v. Brantley, 537 F.3d 347,
350 (5th Cir. 2008). In this case, we defer to the district court’s determination
that its variance is justified by application of the § 3553(a) factors. See Gall v.
United States, 128 S. Ct. 586, 597 (2007); Williams, 517 F.3d at 808-13. Further,
the extent of the variance at issue in this case is consistent with other sentences
that this court has affirmed. See, e.g., Brantley, 537 F.3d at 348-50; United
States v. Herrera-Garduno, 519 F.3d 526, 530-32 (5th Cir. 2008); United States
v. Smith, 440 F.3d 704, 708-10 (5th Cir. 2006).
      Accordingly, the district court’s judgment is AFFIRMED.




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