     Case: 14-40969      Document: 00513116143         Page: 1    Date Filed: 07/15/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 14-40969
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                            July 15, 2015
UNITED STATES OF AMERICA,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff-Appellee

v.

SERGIO RAMIREZ-GANDARILLA,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 1:14-CR-214-1


Before KING, JOLLY, and HAYNES, Circuit Judges.
PER CURIAM: *
       Sergio Ramirez-Gandarilla pleaded guilty to being an alien unlawfully
found in the United States after deportation, having been previously convicted
of a felony. Relevant to the appeal, the district court assessed a 12-level “drug
trafficking offense” enhancement, pursuant to § 2L1.2(b)(1)(B), based on
Ramirez-Gandarilla’s 1989 federal conviction for possession with intent to
distribute marijuana.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 14-40969     Document: 00513116143     Page: 2   Date Filed: 07/15/2015


                                  No. 14-40969

      For the first time on appeal, Ramirez-Gandarilla argues that the district
court plainly erred by applying the 12-level drug trafficking enhancement
under § 2L1.2 because his 1989 federal conviction for possession with intent to
distribute marijuana could have been committed without evidence of
remuneration or commercial activity.
      This court recently held that an enhancement under § 2L1.2(b)(1)(A)(i)
for a prior drug trafficking offense, as that term is defined by the Sentencing
Commission in § 2L1.2, comment. (n.1(B)(iv)), is warranted regardless of
whether the conviction for the prior offense required proof of remuneration or
commercial activity. United States v. Martinez-Lugo, 782 F.3d 198, 204-05 (5th
Cir. 2015). Additionally, in United States v. Rodriguez-Escareno, 700 F.3d 751,
754 (5th Cir. 2012), this court specifically stated that “21 U.S.C. § 841(a)(1) is
a federal drug trafficking offense as defined in Application Note 1” of § 2L1.2.
Accordingly, the judgment of the district court is AFFIRMED.




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