     Case: 14-40226       Document: 00513166392         Page: 1     Date Filed: 08/24/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                     No. 14-40226
                                   Summary Calendar
                                                                          United States Court of Appeals
                                                                                   Fifth Circuit

                                                                                 FILED
                                                                           August 24, 2015
UNITED STATES OF AMERICA,
                                                                            Lyle W. Cayce
                                                                                 Clerk
                                                   Plaintiff - Appellee

v.

OSCAR GARCIA-HERNANDEZ,

                                                   Defendant - Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 2:13-CR-865-1


Before BARKSDALE, DENNIS, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
       Oscar Garcia-Hernandez pleaded guilty to being found unlawfully in the
United States following deportation, in violation of 8 U.S.C. § 1326. He was
sentenced within the applicable advisory sentencing range under the
Sentencing Guidelines to 37 months’ imprisonment.
       Garcia     challenges     the    district   court’s    applying     an       eight-level
enhancement for his 2002 Illinois conviction for possession of cocaine, with


       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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: 14-40226     Document: 00513166392      Page: 2    Date Filed: 08/24/2015


                                  No. 14-40226

intent to deliver, which the court characterized as a “drug trafficking offense”
under Guideline § 2L1.2(b)(1)(B). He also asserts: the Illinois offense is not
an “aggravated felony” under 8 U.S.C. § 1101(a)(43)(B); and, therefore, the
court erred in entering judgment against him under 8 U.S.C. § 1326(b)(2).
      Although post-Booker, the Guidelines are advisory only, and a properly
preserved objection to an ultimate sentence is reviewed for reasonableness
under an abuse-of-discretion standard, the district court must still properly
calculate the advisory Guidelines-sentencing range for use in deciding on the
sentence to impose. Gall v. United States, 552 U.S. 38, 51 (2007). In that
respect, for issues preserved in district court, its application of the Guidelines
is reviewed de novo; its factual findings, only for clear error. E.g., United States
v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008).
      As Garcia concedes, however, he did not raise these issues in district
court; accordingly, review is only for plain error.         E.g., United States v.
Broussard, 669 F.3d 537, 546 (5th Cir. 2012). Under that standard, Garcia
must show a forfeited plain (clear or obvious) error that affected his substantial
rights. Puckett v. United States, 556 U.S. 129, 135 (2009). If he does so, we
have the discretion to correct the error, but should do so only if it seriously
affects the fairness, integrity, or public reputation of the proceedings. Id.
      In his first point of error, Garcia asserts the Illinois offense does not
qualify as a “drug trafficking offense”, U.S.S.G. § 2L1.2(b)(1)(B), because the
Illinois statute criminalizes the giving away of drugs without remuneration
and, therefore, defines “drug trafficking offense” more broadly than the
Guideline. United States v. Martinez-Lugo, 782 F.3d 198, 204-05 (5th Cir.),
petition for cert. filed (23 June 2015) (No. 14-10355), however, forecloses this
contention. As a result, Garcia has not demonstrated the court plainly erred




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                                  No. 14-40226

in applying the Guideline § 2L1.2(b)(1)(B) enhancement based on his prior
Illinois conviction.
      Regarding Garcia’s second contention (the court erred in sentencing him
under 8 U.S.C. § 1326(b)(2) (being previously removed following a conviction
for an aggravated felony)), it is not necessary to decide, under the plain-error
standard, whether the Illinois offense of possession of a controlled substance
with intent to deliver constitutes an aggravated felony under 8 U.S.C.
§ 1101(a)(43)(B). Instead, Garcia’s sentence may be affirmed because, prior to
his removal, he was convicted of the Illinois offense of unlawful use of a firearm
by a felon, which qualifies as an aggravated felony under 8 U.S.C.
§ 1101(a)(43)(E)(ii). See Nieto-Hernandez v. Holder, 592 F.3d 681, 685-86 (5th
Cir. 2009); see also United States v. Ho, 311 F.3d 589, 602 n.12 (5th Cir. 2002)
(stating judgment may be affirmed on any basis appearing in the record).
      AFFIRMED.




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