                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                          June 21, 2006
                                   TENTH CIRCUIT                       Elisabeth A. Shumaker
                                                                           Clerk of Court

 U N ITED STA TES O F A M ER ICA,

          Plaintiff - Appellee,

 v.                                                        No. 05-2296
                                                        (D. New M exico)
 JA V IER ME ND O ZA -G U A RD IOLA,                (D.Ct. No. CR-05-690-JH)

          Defendant - Appellant.



                              OR D ER AND JUDGM ENT *


Before H E N RY, BR ISC OE, and O’BRIEN, Circuit Judges.




      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

      On M ay 5, 2005, Javier M endoza-Guardiola pled guilty to one count of

illegal reentry following deportation in violation of 8 U.S.C. § 1326(a). The




      *
          This order and judgment is not binding precedent except under the doctrines of
law of the case, res judicata and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
district court sentenced him to twenty-four months’ imprisonment. That sentence

was in accord w ith the recommendation in the Presentence Investigation Report

(PSR ), which recommended a twelve-level enhancement because the defendant

had a prior felony drug trafficking conviction. 1 See United States Sentencing

Commission, Guidelines M anual, § 2L1.2(b)(1)(B) (2004). Defendant objected to

the PSR, arguing that he was not subject to the twelve-level enhancement because

his prior felony conviction, although an “aggravated felony,” was not a felony

“drug trafficking offense” for purposes of USSG §2L1.2(b)(1)(B). The district

court disagreed. It also rejected M endoza-Guardiola’s argument that a sentence

within the applicable guideline range was unreasonable and denied his request for

a downward departure. Judgment was entered on September 2, 2005. M endoza-

Guardiola timely appealed. He raises the same argument on appeal that he did

below, i.e., his prior conviction was not a “felony drug trafficking offense,” and

adds that the district court’s sentence was unreasonable. W e exercise jurisdiction

under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291 and AFFIRM .




       1
         The PSR determined Mendoza-Guardiola’s base offense level was eight pursuant
to USSG §2L1.2(a). Twelve levels were added for his prior felony “drug trafficking”
conviction. Mendoza-Guardiola also received a three level downward adjustment for
acceptance of responsibility pursuant to USSG §3E1.1. Thus, his total offense level was
seventeen, with a criminal history category of I, resulting in a guideline range of twenty-
four to thirty months.

                                            -2-
Discussion:

      W e review the district court’s application and interpretation of the

Sentencing Guidelines de novo. United States v. Chavez-Valenzuela, 170 F.3d

1038, 1039 (10th Cir. 1999). H owever, w e review factual findings for clear error.

United States v. Serrata, 425 F.3d 886, 906 (10th Cir. 2005). The classification

of a prior conviction is a question of law we review de novo. United States v.

M artinez-Villalva, 232 F.3d 1329, 1332 (10th Cir. 2000). W e review sentences

imposed after United States v. Booker, 543 U.S. 220 (2005), for reasonableness.

United States v. Glover, 413 F.3d 1206, 1210 (10th Cir. 2005). W e note that the

district court “is not required to consider individually each factor listed in §

3553(a) before issuing a sentence.” United States v. Kelley, 359 F.3d 1302, 1305

(10th Cir. 2004). “If . . . the district court properly considers the relevant

Guidelines range and sentences the defendant within that range, the sentence is

presumptively reasonable.” United States v. Kristl, 437 F.3d 1050, 1055 (10th

Cir. 2006). “The defendant may rebut this presumption by demonstrating that the

sentence is unreasonable in light of the other sentencing factors laid out in [18

U.S.C.] § 3553(a).” Id.

      Section 2L1.2(b)(1)(B) calls for a twelve-level enhancement to the base

offense level if the defendant was deported after having been convicted of a

“felony drug trafficking offense for which the sentence imposed was 13 months or

less . . . .” The sentencing guidelines define a “[d]rug trafficking offense” as “an

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offense under federal, state, or local law that prohibits . . . the possession of a

controlled substance . . . with intent to distribute . . . .” USSG §2L1.2, comment.

(n.1(B)(iv)). To determine whether M endoza-Guardiola’s prior conviction

constitutes a “drug trafficking offense,” the court must first look to the statutory

definition of the crime. See U nited States v. Reyes-Castro, 13 F.3d 377, 379

(10th Cir. 1993). W e employ a “categorical approach” to determine whether

M endoza-Guardiola’s prior conviction under 18 U.S.C. § 1952 is a “drug

trafficking offense.” United States v. Herrera-Roldan, 414 F.3d 1238, 1240-41

(10th Cir. 2005); see also United States v. M artinez-Hernandez, 422 F.3d 1084,

1088 (10th Cir. 2005) (characterizing Herrera-Roldan as applying the categorical

approach). By its terms, 18 U.S.C. § 1952 reaches different types of conduct. 2



      2
          Section 1952 provides:

      (a) Whoever travels in interstate or foreign commerce or uses the mail or any
      facility in interstate or foreign commerce, with intent to --

               (1) distribute the proceeds of any unlawful activity; or

               (2) commit any crime of violence to further any unlawful activity; or

               (3) otherwise promote, manage, establish, carry on, or facilitate the
               promotion, management, establishment, or carrying on, of any unlawful
               activity,

      and thereafter performs or attempts to perform --

                      (A) an act described in paragraph (1) or (3) shall be fined under this
                      title, imprisoned not more than 5 years, or both; or


                                             -4-
United States v. Rodriquez-Duberney, 326 F.3d 613, 617 (5th Cir. 2003). Thus,

the court “may look to the charging paper and judgment of conviction” to

determine how the offense should be classified. United States v. Venegas-

Ornelas, 348 F.3d 1273, 1275 (10th Cir. 2003).

       The information to which M endoza-Guardiola pled guilty in the original

case specifically alleged he possessed marijuana with the intent to distribute it. 3

Although his plea agreement and the judgment may not have mentioned that

M endoza-Guardiola possessed marijuana with the intent to distribute, M endoza-


                       (B) an act described in paragraph (2) shall be fined under this title,
                       imprisoned for not more than 20 years, or both, and if death results
                       shall be imprisoned for any term of years or for life.

       (b) As used in this section (i) “unlawful activity” means (1) any business
       enterprise involving gambling, liquor on which the Federal excise tax has not been
       paid, narcotics or controlled substances (as defined in section 102(6) of the
       Controlled Substances Act), or prostitution offenses in violation of the laws of the
       State in which they are committed or of the United States, (2) extortion, bribery, or
       arson in violation of the laws of the State in which committed or of the United
       States, or (3) any act which is indictable under subchapter II of chapter 53 of title
       31, United States Code, or under section 1956 or 1957 of this title . . . .
       3
           The information stated:

       Javier Mendoza, defendant herein, did travel in interstate commerce, from the state
       of Oklahoma, to the state of Illinois, with intent to promote, manage, establish,
       carry on [and] facilitate the promotion, management, establishment and carrying
       on of unlawful activity, to wit, the knowing and intentional possession with intent
       to distribute approximately 47 pounds of marijuana, a Schedule II Non-Narcotic
       Controlled Substance, and thereafter, on April 19, 1989, did perform and cause to
       be performed acts facilitating said unlawful activity; all in violation of [18 U.S.C.
       §] 1952.

(Appellee’s Exh. 1 at 1.)

                                              -5-
Guardiola specifically pled guilty to the information and therefore admitted all

the allegations contained therein. United States v. Broce, 488 U.S. 563, 570

(1989); United States v. Hill, 53 F.3d 1151, 1155 (10th Cir. 1995). The

allegations in the indictment, to which M endoza-Guardiola admitted by pleading

guilty, are sufficient to establish that his prior conviction was for a “drug

trafficking offense.” Thus, the district court’s imposition of a twelve-level

enhancement was not error. 4

      Nor is M endoza-Guardiola’s sentence unreasonable. M endoza-Guardiola

was sentenced within a correctly calculated guideline range. Thus, the sentence

imposed in this case is presumptively reasonable. Kristl, 437 F.3d at 1055. The

district court considered and applied the sentencing factors in § 3553(a) and relied

heavily upon the fact that M endoza-Guardiola had not received any criminal




      4
         Mendoza-Guardiola’s prior conviction need not be pled in the indictment or
proven beyond a reasonable doubt to a jury. Almendarez-Torrez v. United States, 523
U.S. 224, 226-27 (1998). Nor can we set aside the holding of Almendarez-Torres based
upon the Supreme Court’s recent decision in Shepard v. United States, 544 U.S. 13
(2005). Although Shepard casts some doubt on the continuing validity of Almendarez-
Torres, the Supreme Court has not overruled it and we continue to be bound by it. See
Shepard, 544 U.S. at 27 (Thomas, J., concurring) (stating that Almendarez-Torres “has
been eroded by this Court’s subsequent Sixth Amendment jurisprudence, and a majority
of the Court now recognizes that Almendarez-Torres was wrongly decided”); United
States v. Moore, 401 F.3d 1220, 1224 (10th Cir. 2005) (“[W]e are bound by existing
precedent to hold that the Almendarez-Torres exception to the rule announced in
Apprendi [v. New Jersey, 530 U.S. 46 (2000)] and extended to the Guidelines in Booker
remains good law.”). Mendoza-Guardiola concedes this Court is still obligated to follow
Almendarez-Torres, but raises the issue “in order to preserve the claim for further
review.” (Appellant’s Br. at 27.)

                                          -6-
history points for his prior conviction. Additionally, the district court deemed

M endoza-Guardiola’s “family situation, [] financial situation, [] illegal status, and

[] reasons for returning to the United States are not factors that take his case

outside of the heartland of cases, of those who are similarly situated” and

sentenced him at the bottom of the sentencing range. (R. Vol. III at 35, 36.)

M endoza-Guardiola has failed to adequately rebut the presumption of

reasonableness by establishing the sentence was unreasonable in light of the

sentencing factors in § 3553(a).

A FFIRME D.



                                        Entered by the C ourt:

                                        Terrence L. O ’Brien
                                        United States Circuit Judge




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