     Case: 11-20089     Document: 00511779938         Page: 1     Date Filed: 03/07/2012




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

                                                                            FILED
                                                                           March 7, 2012
                                     No. 11-20089
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

MAHER JAMEEL HADDAD, also known as Maher Haddad, also known as
Maher J. Haddad,

                                                  Defendant-Appellant


                   Appeals from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:10-CR-121-1


Before DAVIS, DeMOSS, and HAYNES, Circuit Judges.
PER CURIAM:*
        Having pleaded guilty, Maher Jameel Haddad appeals his conviction and
sentence for illegal reentry following deportation. He argues that his conviction
and sentence under 8 U.S.C. § 1326(b)(2) must be vacated because he does not
have a prior conviction that is an aggravated felony under the Immigration and
Nationality Act, and he challenges a 12-level increase in his offense level,
arguing that the Texas conviction used to enhance his sentence is not a “drug


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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                                  No. 11-20089

trafficking offense” under U.S.S.G. § 2L1.2(b)(1)(B). He contends that he was
wrongly assessed criminal history points for offenses committed more than ten
years prior to the instant offense. Finally, he argues that the district court erred
by citing conduct for which he was not prosecuted in support of its decision to
deny a downward departure.
      Because Haddad did not challenge his conviction and sentence under
§ 1326(b)(2) in the district court, his arguments are reviewed for plain error.
Puckett v. United States, 556 U.S. 129, 133-34 (2009). To show plain error, he
must show a forfeited error that is clear or obvious and that affects his
substantial rights. Id. at 135. 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.
      No plain error occurred as § 1326(b)(1) and (2) are sentencing factors
rather than elements of the offense of illegal reentry. See Almendarez-Torres v.
United States, 523 U.S. 224, 235, 247 (1998). Haddad has waived any argument
based on the contention that the conviction supporting his sentence under
§ 1326(b) predates the September 30, 1996, effective date of the Illegal
Immigration Reform and Immigration Responsibility Act. See United States v.
Lindell, 881 F.2d 1313, 1325 (5th Cir. 1989).
      The district court did not err in imposing an enhanced sentence under
§ 2L1.2(b)(1)(B). Under the Sentencing Guidelines, Haddad’s Texas conviction
for delivery of a controlled substance is considered a “drug trafficking offense.”
See United States v. Marban-Calderon, 631 F.3d 210, 212-13 (5th Cir.), cert.
denied, 132 S. Ct. 129 (2011). The sentencing court also did not err in assessing
criminal history points for 1996 and 1998 misdemeanor convictions as it is
undisputed that they occurred within ten years of Haddad’s unauthorized return
to this country. See United States v. Santana-Castellano, 74 F.3d 593, 598 (5th
Cir. 1996); see also United States v. Vargas-Garcia, 434 F.3d 345, 349 (5th Cir.
2005). We lack jurisdiction to review the denial of a downward departure in this

                                         2
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                                No. 11-20089

case as Haddad has identified no record evidence “indicating that the district
court held an erroneous belief that it lacked the authority to depart.” United
States v. Hernandez, 457 F.3d 416, 424 & n.5 (5th Cir. 2006).
      AFFIRMED.




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