     Case: 11-40592     Document: 00511804989         Page: 1     Date Filed: 03/29/2012




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

                                                                            FILED
                                                                          March 29, 2012
                                     No. 11-40592
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

MIGUEL CASTRO-MAGAMA, also known as Miguel Angel Castro-Magama,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 5:11-CR-99-1


Before BENAVIDES, STEWART, and HIGGINSON, Circuit Judges.
PER CURIAM:*
        Miguel Castro-Magama (Castro) appeals the 30-month sentence imposed
after he pleaded guilty under 8 U.S.C. § 1326(a) to illegally reentering the
United States after deportation. He argues that the district court erred in
applying a 12-level enhancement to his offense level under U.S.S.G.
§ 2L1.2(b)(1)(B). The enhancement applies if an illegal reentry defendant was
previously deported after a conviction for a felony drug trafficking offense for
which the sentence was 13 months or less.                 The district court based 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
   Case: 11-40592    Document: 00511804989     Page: 2   Date Filed: 03/29/2012

                                  No. 11-40592

enhancement on Castro’s prior North Carolina convictions for selling cocaine and
possession with intent to sell or deliver cocaine, for which he was sentenced to
9 to 11 months of imprisonment. Castro argues that his prior convictions were
not felonies because under North Carolina’s structured sentencing statute, he
was subject to no more than 11 months of imprisonment. See § 2L1.2, comment.
(n.2) (defining felony as a federal, state, or local offense punishable by
imprisonment for a term exceeding one year).
      Because Castro did not object in the district court, we review his claim for
plain error only. See United States v. Perez, 585 F.3d 880, 886 (5th Cir. 2009).
To show plain error, Castro must show a forfeited error that is clear or obvious,
instead of subject to reasonable dispute, and that affects his substantial rights.
Puckett v. United States, 556 U.S. 129, 135 (2009). If he makes such a showing,
we have the discretion to correct the error but only if it seriously affects the
fairness, integrity, or public reputation of judicial proceedings. Id.
      When Castro committed his North Carolina offenses in 2008, state law
punished selling cocaine as a Class G felony by up to 44 months of imprisonment
and punished possession with intent to sell or deliver cocaine as a Class H felony
by up to 30 months in prison. See N.C. GEN. STAT. § 90-95(b)(1) (2008); N.C.
GEN. STAT. ANN. § 15A-1340.17 (c)-(d) (West 2008). The state court consolidated
the two offenses for sentencing and used the more serious offense to determine
the sentencing range.     The state court determined that Castro should be
punished under the mitigated range as a Class G felon with a prior record level
of II. The mitigated range of minimum punishments was 9 to 12 months of
imprisonment. See § 15A-1340.17(c). The court selected a minimum sentence
at the bottom of that range, and the corresponding maximum sentence was 11
months. See § 15A-1340.17(c)-(d). Castro argues that this 11-month maximum
governs the determination whether his offense was a felony for purposes of
§ 2L1.2(b)(1)(B).



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   Case: 11-40592      Document: 00511804989        Page: 3     Date Filed: 03/29/2012

                                     No. 11-40592

       We rejected arguments like Castro’s in two unpublished opinions, United
States v. Colin-Fajardo, 278 F. App’x 340, 341-42 (5th Cir. 2008), and United
States v. Cedillos, 191 F. App’x 322, 323-24 (5th Cir. 2006). Although those
decisions cited United States v. Harp, 406 F.3d 242, 245 (4th Cir. 2005), which
was subsequently overruled by a divided Fourth Circuit in United States v.
Simmons, 649 F.3d 237 (4th Cir. 2011) (en banc),1 we cannot say, in light of the
“legal landscape,” that the district court’s application of the § 2L1.2(b)(1)(B)
enhancement was clear or obvious error. United States v. Rodriguez-Parra, 581
F.3d 227, 230 (5th Cir. 2009); see also United States v. Guerrero-Robledo, 565
F.3d 940, 946 (5th Cir. 2009) (“It is certainly not plain error for the district court
to rely on an unpublished opinion that is squarely on point.”).
       AFFIRMED.




      1
         We note that the Fourth Circuit’s majority opinion in Simmons, 649 F.3d 237, ruled
that its previous decision in Harp, 406 F.3d 242 was no longer good law in light of the
Supreme Court’s opinion in Carachuri-Rosendo v. Holder, 130 S. Ct. 2577 (2010).

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