                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 06a0613n.06
                            Filed: August 22, 2006

                                           No. 05-1353

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                        )
                                                 )
       Plaintiff-Appellee,                       )
                                                 )   ON APPEAL FROM THE UNITED
v.                                               )   STATES DISTRICT COURT FOR THE
                                                 )   WESTERN DISTRICT OF MICHIGAN
HECTOR LUCERO,                                   )
                                                 )
       Defendant-Appellant.                      )
                                                 )


       Before: GILMAN and SUTTON, Circuit Judges; HOOD, District Judge.*


       SUTTON, Circuit Judge. In sentencing Hector Lucero for reentering the country after being

deported for committing an aggravated felony offense, the district court enhanced his sentence on

the ground that one of his prior convictions—violating a state drug-solicitation statute—qualified

as a “drug trafficking offense.” See U.S.S.G. § 2L1.2(b)(1)(A). While Lucero did not challenge this

enhancement below, he does so on appeal. Because the district court did not plainly err in making

the enhancement, we affirm.


                                                I.




       *
       The Honorable Denise Page Hood, United States District Judge for the Eastern District of
Michigan, sitting by designation.
No. 05-1353
United States v. Lucero

       In June 1989, Lucero pleaded guilty in Los Angeles County to soliciting a minor to sell

drugs, an aggravated felony under California law. See Cal. Health & Safety Code § 11380. After

serving his sentence, the United States deported him on January 9, 1991. Lucero eventually

reentered the United States without authorization, and the authorities eventually arrested him for

doing so. In October 2004, Lucero pleaded guilty to reentering the United States as a removed alien.

See 8 U.S.C. § 1326(b)(2) (preventing aliens who have been deported for committing an aggravated

felony from reentering the United States).


       In his plea agreement, Lucero acknowledged that his prior conviction involved an aggravated

felony. As a result of this concession, the presentence report recommended that Lucero’s offense

level initially be increased to 16. In describing Lucero’s state-law conviction for soliciting a minor

to sell drugs, the presentence report stated that “[o]fficers conducting an undercover drug sting

purchased $10.00 worth of ‘crack’ cocaine from [Lucero].” JA 67. The report then concluded that

this conviction amounted to a drug-trafficking offense with a sentence exceeding 13 months and

that, accordingly, his offense level should be increased an additional 8 points to 24. See U.S.S.G.

§ 2L1.2(b)(1)(A).


       The district court adopted the presentence report’s recommendations and calculated Lucero’s

offense level at 24. It also determined that he had a criminal history of VI, giving Lucero a

guidelines range of 100 to 125 months. The court imposed a 100-month sentence.




                                                -2-
No. 05-1353
United States v. Lucero

                                                  II.


        On appeal, Lucero argues that the district court improperly calculated his guidelines

sentencing range. As he sees it, his California-law conviction was not a drug-trafficking offense and

accordingly his offense level should have been 16, not 24.


        The first problem with this argument is that Lucero did not raise it below. The presentence

report explained that after “[o]fficers conducting an undercover drug sting purchased $10.00 worth

of ‘crack’ cocaine from [him],” Lucero pleaded guilty to violating § 11380 of the California Health

and Safety Code. JA 67. The report then noted that this offense qualified as “an aggravated felony,

as defined by . . . U.S.S.G. § 2L1.2(b)(1)(A).” JA 55. After receiving the presentence report,

Lucero did not object to this characterization of the California offense. He instead issued a “general

objection,” JA 76, complaining about the timeliness and remoteness of virtually all of his prior

convictions (including this one) and about the descriptions of several of them (though not including

this one).


        At sentencing, the judge and Lucero’s attorney agreed that Lucero was making the following

objections to the presentence report: (1) that a parole-violation conviction was too remote in time

to be considered in sentencing him; (2) that the dates of another conviction conflicted with the date

of his deportation; (3) that all of his prior convictions were too remote in time to be considered; and

(4) that two convictions were scored incorrectly. Because none of these objections had any legal

or factual support and because “[e]very single thing he [said was] contradicted by” the record, the



                                                 -3-
No. 05-1353
United States v. Lucero

judge—without further objection from Lucero’s counsel—denied all of Lucero’s objections. JA 41.

Though Lucero objected to details in the descriptions of a number of his prior convictions, he never

objected to the repeated descriptions of his § 11380 conviction as a “drug trafficking offense” under

U.S.S.G. § 2L1.2(b)(1)(A).


        In proposing a sentence for Lucero, the district court explained that it intended to impose a

drug-trafficking enhancement under U.S.S.G. § 2L1.2(b)(1)(A). The court then asked Lucero if

there were “any reasons why the tentative sentence should not be [imposed].” JA 48. Lucero’s

attorney answered, “No, Your Honor.” Id.


        “If the system is to work and if appellate review is to be meaningful, it is absolutely essential

that a defendant raise all objections to the sentence before the sentencing judge in the first instance.”

United States v. Garcia-Meza, 315 F.3d 683, 686 (6th Cir. 2003) (internal quotation marks omitted).

Had Lucero objected to this characterization of his § 11380 offense, the government may well have

been able to produce documentation from the California conviction (say, the plea colloquy or the

indictment) to clarify the nature of the conviction. After all, when Lucero raised objections to other

convictions, the government produced the requisite documentation to quell Lucero’s concerns.

Because Lucero failed to object in the district court to the characterization of his § 11380 conviction

as a drug-trafficking offense, he must establish plain error to obtain relief on appeal. See United

States v. McBride, 362 F.3d 360, 373 (6th Cir. 2004) (“Absent plain error, this Court will not

address claims of alleged misapplication[s] of the [sentencing] guidelines unless the defendant first

raised the claim before the district court.”).

                                                  -4-
No. 05-1353
United States v. Lucero

        The second problem with Lucero’s appeal is that he cannot establish plain error. To clear

this hurdle to obtaining appellate relief, the defendant must show “(1) error, (2) that is plain, and (3)

that affects substantial rights” and (4) that “seriously affects the fairness, integrity, or public

reputation of judicial proceedings.” Johnson v. United States, 520 U.S. 461, 466 (1997) (internal

quotation marks omitted).


        The district court did not plainly err in treating the California-law conviction as a “drug

trafficking offense” under the guidelines. According to the guidelines, a drug-trafficking offense

is “an offense under federal, state, or local law that prohibits the manufacture, import, export,

distribution, or dispensing of a controlled substance . . . or the possession of a controlled

substance . . . with intent to manufacture, import, export, distribute, or dispense.” U.S.S.G. § 2L1.2,

n.1(B)(iv). And according to the guidelines’ application notes, drug-trafficking offenses “include

the offenses of aiding and abetting, conspiring, and attempting, to commit such offenses.” Id. n.5.


        Section 11380 of the California Health and Safety Code in turn provides that “[e]very

person . . . who solicits, induces, encourages, or intimidates any minor with the intent that the minor

shall violate any provision of this article involving those controlled substances or who unlawfully

furnishes, offers to furnish, or attempts to furnish those controlled substances to a minor shall be

punished by imprisonment in the state prison for a period of three, six, or nine years.” (Emphasis

added). An individual thus may violate § 11380 by “soliciting” a minor to peddle certain drugs or

by “furnishing” a minor with them.




                                                  -5-
No. 05-1353
United States v. Lucero

       As an initial matter, Lucero has failed to show plain error because one method of violating

the statute—“furnishing” a minor with controlled substances—satisfies the definition of a drug-

trafficking offense, which covers the “distribut[ion]” of controlled substances. U.S.S.G. § 2L1.2

n.1(b)(iv). Because one method of violating § 11380 meets the definition of a drug-trafficking

offense and because Lucero has offered no indication that his California conviction did not involve

this prong of the statute, he has failed to show that the district court’s reliance on this conviction

prejudiced him or otherwise “seriously affect[ed] the fairness, integrity, or public reputation of

judicial proceedings.” Johnson, 520 U.S. at 466.


       Had the California offense involved only the solicitation prong of the statute, we

acknowledge, the disposition of this claim would be less obvious. In United States v. Dolt, we

considered whether a conviction for violating a solicitation prohibition under Florida laws amounted

to a controlled-substance offense under the career-offender enhancement, an enhancement provision

that defines a drug-trafficking offense in the same way that U.S.S.G. § 2L1.2 does. 27 F.3d 235, 237

(6th Cir. 1994). The Florida statute at issue in Dolt applied to a person who “commands,

encourages, hires, or requests” another to commit an offense under Florida laws, Fla. Stat. § 777.04,

while the California statute at issue here applies to a person who “solicits, induces, encourages, or

intimidates” a minor to commit a controlled-substance offense under California laws, Cal. Health

& Safety Code § 11380. In Dolt, we held that a conviction under the Florida solicitation statute did

not satisfy the elements of a controlled-substance offense because the list of examples of this offense




                                                 -6-
No. 05-1353
United States v. Lucero

in the application notes (aiding and abetting, conspiracy, and attempt) did not include solicitation.

Id. at 238–39.


        Were this case before us under the traditional rules of appellate review, as opposed to plain-

error review, and were it true that the California law applied only to solicitations, like the Florida

law, we would be obliged to follow Dolt. And that is true even though the decision has been

criticized for failing to appreciate that the commentary’s list of related crimes is meant to be

exemplary (“includ[ing]”), not exhaustive. See United States v. Shumate, 329 F.3d 1026, 1030–31

(9th Cir. 2003) (“In guideline parlance the term ‘includes’ is not exhaustive. . . . With all due

respect, we think that the path of development of the law in the Sixth Circuit has involved it in the

inconsistency . . . [that] somehow, the ‘include’ clause does not exclude solicitation from crimes of

violence, [see United States v. Walker, 181 F.3d 774, 781 (6th Cir. 1999)], but does exclude

solicitation from controlled substance offenses, [see Dolt]. We simply do not agree.”) (internal

quotation marks and brackets omitted).


        But this case is before us on plain-error review, and as we have persuasively held before in

this context, that makes all the difference. “Dolt . . . illustrate[s] the highly technical nature of the

question involved,” United States v. Wicks, No. 95–5478, 1997 U.S. App. LEXIS 11798, at *9 (6th

Cir. May 15, 1997), precluding the possibility that the answer can “fairly be described as ‘clear or

obvious,’ and we certainly cannot say that the district court was ‘derelict’ in failing to reach a

[particular] conclusion . . . . Under our plain error standard of review, therefore, the defendant’s

sentence must be affirmed,” id. Regardless of whether the solicitation element of § 11380 qualifies

                                                  -7-
No. 05-1353
United States v. Lucero

as a drug-trafficking offense, Lucero’s sentence must be affirmed because he, like the defendant in

Wicks, did not object to the district court’s characterization of his offense—a characterization that

falls squarely within the definition of a drug-trafficking offense.


       Lucero’s failure to raise this objection below and his failure to satisfy the stringent

requirements of plain-error review necessarily dispose of his final argument—that the alleged error

in calculating his guidelines sentencing range violated the procedural requirements of Booker. See

United States v. Hazelwood, 398 F.3d 792, 801 (6th Cir. 2005) (holding that a district court’s

incorrect calculation of a guidelines sentencing range may violate Booker).


                                                 III.


       For these reasons, we affirm.




                                                -8-
