     Case: 15-40104      Document: 00513202785         Page: 1    Date Filed: 09/22/2015




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

                                                                                   FILED
                                                                             September 22, 2015
                                    No. 15-40104
                                  Summary Calendar                              Lyle W. Cayce
                                                                                     Clerk


UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee,

v.

CRISTOBAL VIELMA-ESQUIVEL,

                                                 Defendant-Appellant.


                   Appeal from the United States District Court
                        for the Southern District of Texas
                            USDC No. 7:14-CR-1559-1


Before KING, OWEN, and HIGGINSON, Circuit Judges.
PER CURIAM: *
       Cristobal Vielma-Esquivel (Vielma) pleaded guilty of being found in the
United States after previous deportation. In this appeal, Vielma contends that
the district court reversibly erred by imposing a 16-level “drug trafficking
offense” enhancement, under U.S.S.G. § 2L1.2(b)(1)(A)(i), because he was
convicted in 1998 of use of a communication facility to facilitate a drug
trafficking crime in violation of 21 U.S.C. § 843(b). Citing Descamps v. United


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 15-40104     Document: 00513202785      Page: 2   Date Filed: 09/22/2015


                                   No. 15-40104

States, 133 S. Ct. 2276 (2013), he asserts that § 843(b) is an indivisible statute
and, thus, the modified categorical approach of Shepard v. United States, 544
U.S. 13, 16 (2005), does not apply. Because the statute may be violated in ways
that do not constitute a generic “drug trafficking offense,” he argues, a prior
conviction under § 843(b) may never qualify as a drug trafficking offense for
purposes of § 2L1.2(b)(1)(A)(i).
      Although Vielma objected to the 16-level enhancement in the district
court, he did so on other grounds. Thus, our review of Vielma’s arguments are
for plain error. See United States v. Henao-Melo, 591 F.3d 798, 801 (5th Cir.
2009). To be plain, an “‘error must be clear or obvious, rather than subject to
reasonable debate.’” United States v. Ellis, 564 F.3d 370, 377-78 (5th Cir. 2009)
(quoting Puckett v. United States, 556 U.S. 129, 135 (2009)).            Vielma’s
argument relies only on an extension of the Supreme Court’s reasoning in
Descamps. Because it asserts a novel legal theory, the district court did not
commit a clear or obvious error in failing to recognize it. See United States v.
Evans, 587 F.3d 667, 671 (5th Cir. 2009) (concluding that any error was not
plain where argument was novel and not supported by circuit precedent). The
judgment is AFFIRMED.




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