                                                                        F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                          July 7, 2005
                                   TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                              Clerk

 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,
                                                       No. 04-2208
 v.                                               (D.C. No. CR-03-1485)
                                                         (D.N.M.)
 SERGIO MILLAN-TORRES, also
 known as Jose Luis Zapata, also
 known as Hector Rodriguez-Zapata,

          Defendant - Appellant.


                             ORDER AND JUDGMENT *


Before KELLY, BALDOCK, and HARTZ, Circuit Judges.



      Defendant-Appellant Sergio Millan-Torres, a citizen of Mexico, pleaded

guilty to illegal reentry following removal for commission of an aggravated

felony. At sentencing, due to a prior felony conviction, his offense level and

criminal history category were enhanced under U.S.S.G. §§ 2L1.2 and 4A1.1. On

appeal, Mr. Millan-Torres argues that (1) the sentence enhancements were



      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This 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.
improper under the Guidelines because the state court that rendered his prior

conviction lacked jurisdiction and the information properly before the district

court failed to establish a prior drug-trafficking offense, and (2) his sentence

violates United States v. Booker,    U.S.    ; 125 S. Ct. 738 (2005). Exercising

jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), we affirm.



                                     Background

      In 1993, Mr. Millan-Torres was convicted of a felony drug offense in

California state court after selling $20 worth of cocaine to an undercover officer.

II R. at 7, ¶ 24. During these proceedings, Mr. Millan-Torres told California

officials that his birthdate was February 1, 1974, making him 19 years old at the

time. Id. at 8, ¶ 24. He was sentenced by the California adult court to three years

imprisonment. While serving his sentence, Mr. Millan-Torres was paroled and

removed to his native Mexico. II R. at 4, ¶ 12.

      In 2003, Mr. Millan-Torres was apprehended near Columbus, New Mexico.

Id. at 3, ¶ 4. He was subsequently indicted for illegal reentry following

conviction of an aggravated felony, in violation of 8 U.S.C. §§ 1326(a)(1) and

(2), (b)(2), I R. at Doc. 9, to which he pleaded guilty. II R. at 3, ¶ 1. The

Presentence Report (“PSR”) indicated a base offense level of eight, but

recommended a 16-level enhancement under U.S.S.G. § 2L1.2 for a prior felony


                                          -2-
drug-trafficking conviction. Id. at 4, ¶ 12. The PSR also recommended that three

points be added to Mr. Millan-Torres’s criminal history calculation based on the

prior California conviction as the sentence exceeded 13 months, id. at 7-8, ¶¶ 24

& 25, and that two points be added because Mr. Millan-Torres was still on parole

for the California conviction when he reentered the United States illegally. Id. at

PSR Addendum (Apr. 14, 2004).

      Mr. Millan-Torres objected to the PSR asserting he had given the wrong

birthdate during the prior California proceedings and that in fact he was a juvenile

at the time. Id. at PSR Addendum (May 18, 2004). Based on this asserted status,

he argued that the California conviction was invalid and violated his due process

rights because he was sentenced by a court lacking jurisdiction over him. He also

filed a Motion for Downward Departure arguing the PSR recommendation over-

represented the seriousness of his criminal history. I R. at Doc. 32; II R. at PSR

Second Addendum (June 9, 2004). In support of his motion, Mr. Millan-Torres

again argued that he was a juvenile at the time of his prior offense, and he also

pointed out that he had not been arrested since the ten-year-old California

conviction and that at the time of his arrest he only had 29 days of parole

remaining. In response, the Government agreed the parole violation was a minor

offense and recommended that his criminal history category be reduced one level.

II R. at PSR Second Addendum.


                                         -3-
      The district court denied Mr. Millan-Torres’s Motion for a Downward

Departure finding that Custis v. United States, 511 U.S. 485 (1994), precluded it

from considering a collateral attack on the prior conviction for reasons other than

a complete denial of counsel. III R. at 10. The court then adopted the PSR’s

factual findings and guideline applications, reduced Mr. Millan-Torres’s criminal

history category one level as recommended, and sentenced him to 41 months

imprisonment, the bottom of the applicable guideline range. Id. at 16-18. Mr.

Millan-Torres filed a timely notice of appeal. I R. at Doc. 44.



                                      Discussion

A.    Sentence Enhancements

      Faced with a sentencing challenge, we review the district court’s factual

findings for clear error and the court’s interpretation of the Sentencing Guidelines

de novo. United States v. Simpson, 94 F.3d 1373, 1380 (10th Cir. 1996).

However, arguments that are raised for the first time on appeal are reviewed for

plain error. Fed. R. Crim. P. 52(b); United States v. Ruiz-Gea, 340 F.3d 1181,

1185 (10th Cir. 2003). Plain error exists when there is (1) error, (2) that is plain,

(3) and effects substantial rights, and (4) “seriously affect[s] the fairness,

integrity, or public reputation of judicial proceedings.” Ruiz-Gea, 340 F.3d at

1185 (quotations and citation omitted).


                                          -4-
1.    Can Mr. Millan-Torres collaterally attack at sentencing the state conviction
      used to enhance his sentence?

      Section 2L1.2(b) of the Sentencing Guidelines provides for a sixteen-level

enhancement for prior drug-trafficking convictions where the sentence exceeds

thirteen months. Likewise, § 4A1.1 provides for a three-point criminal history

increase for every “prior sentence of imprisonment exceeding one year and one

month.” U.S.S.G. § 4A1.1(a). Mr. Millan-Torres’s sentence was enhanced under

both of these provisions based on his prior California drug conviction. On

appeal, he again asserts that his prior conviction was not properly considered at

sentencing as he was a juvenile at the time and the adult court lacked jurisdiction

over him.

      In Custis, the Supreme Court held that a prior conviction used to enhance a

federal sentence under the Armed Career Criminal Act (“ACCA”) cannot be

collaterally attacked at the time of sentencing, except when the attack is based on

a complete denial of counsel. 511 U.S. at 487. We have since applied this

holding to enhancements made under the Sentencing Guidelines. Specifically, we

have held that collateral attacks at the time of sentencing, for reasons other than

the complete denial of counsel, are not properly considered when they relate to

enhancements made under the career offender provisions in U.S.S.G. § 4B1.1,

United States v. Garcia, 42 F.3d 573, 581 (10th Cir. 1994), or the criminal history

calculation in U.S.S.G. § 4A1.1. United States v. Simpson, 94 F.3d 1373, 1381-

                                         -5-
82 (10th Cir. 1996).

        In both Garcia and Simpson, we considered the specific guideline provision

at issue and its accompanying commentary and concluded that the Sentencing

Guidelines only allow for collateral attacks “‘otherwise recognized in law.’”

Simpson, 94 F.3d at 1381 (quoting U.S.S.G. § 4A1.2, comment. (n.6) (Nov.

1993)); Garcia, 42 F.3d at 580 (citation omitted). That is, the Guidelines

themselves do not provide an independent basis for collaterally attacking a prior

conviction. Thus, only those collateral attacks recognized by the Constitution

(the Custis exception) or some other provision of law are properly considered.

Garcia, 42 F.3d at 580. We see no reason to reach a different conclusion in this

case.

        The enhancement under § 4A1.1 (criminal history provision) is directly

governed by our holding in Simpson. 94 F.3d at 1381-82. Regarding the § 2L1.2

offense-level enhancement, as with the ACCA, this guideline provision speaks

solely in terms of a prior “conviction,” U.S.S.G. § 2L1.2(b)(1) (If the defendant

previously was deported . . . after– a conviction for a felony . . .”) (emphasis

added); see also Ruiz-Gea, 340 F.3d at 1188 (“the provision speaks of deportation

‘after . . . a conviction’”); cf. Custis, 511 U.S. at 490-91 n.1 (“The [ACCA]

focuses on the fact of the conviction . . .”), which is an undefined term. And, as

we held in United States v. Cisneros-Cabrera, 110 F.3d 746 (10th Cir. 1997), the


                                         -6-
only relevant fact for triggering an enhancement under this provision is that the

defendant was removed after being convicted for one of the listed felonies. Id. at

748. Whereas the criminal history provisions further refine which prior

convictions are properly considered, specifically excluding those that are

previously invalidated or vacated, U.S.S.G. § 4A1.2, comment. (n.6) (1993),

§2L1.2 has no such limitation. This distinction evidences that under § 2L1.2, the

validity, or fact, of the prior conviction is determined at the time of the

defendant’s removal, but for purposes of calculating criminal history, the validity

of the prior conviction is determined at the time the enhancement is being

employed. Id. Given this construction, we find it implausible that Congress

intended § 2L1.2 to provide for collateral attacks at sentencing. Indeed, if

anything, the lack of such Congressional intent is clearer here than in the other

Guideline provisions we have previously addressed.

      Mr. Millan-Torres suggests § 2L1.2 does contemplate collateral review in

that the application notes specify that the sentencing court cannot consider “a

conviction for an offense committed before the defendant was eighteen years of

age unless such conviction is classified as an adult conviction.” U.S.S.G. §

2L1.2, comment. (n.1(A)(iv)) (2003). We disagree. This same limitation exists in

§ 4A1.1, see U.S.S.G. § 4A1.1, comment. (n.1) (1987) (“A sentence imposed for

an offense committed prior to the defendant’s eighteenth birthday is counted


                                          -7-
under this item only if it resulted from an adult conviction.”), and yet we

specifically held that provision does not create a right to collateral review at

sentencing. Simpson, 94 F.3d at 1381-82. Simply because the facts of this case

directly implicate the juvenile conviction limitation is insufficient to undermine

our prior decision.

      Thus, the Supreme Court’s holding in Custis is equally applicable to

sentences enhanced under the Sentencing Guidelines as the ACCA. Garcia, 42

F.3d at 581. As Mr. Millan-Torres’s prior conviction is “classified as an adult

conviction” under California law, the district court properly considered it in

enhancing his sentence under the Guidelines.

      Recognizing that our prior decisions do not support his position, Mr.

Millan-Torres attempts to focus our attention on the Supreme Court’s language in

Custis categorizing the complete denial of counsel as a “jurisdictional defect.”

Custis, 511 U.S. at 496 (emphasis added). In so doing, he suggests this language

establishes a broader exception for all collateral attacks based on jurisdictional

failings. No federal court has yet adopted Mr. Millan-Torres’ view. 1 Even


      1
        The Seventh Circuit, in United States v. Kramer, 225 F.3d 847 (7th Cir.
2000), did allow a collateral attack on a prior state judgment based on lack of
personal jurisdiction. At issue in Kramer was the Child Support Recovery Act
(“CSRA”), which established federal criminal liability for parents who willfully
fail to pay child support for children living out of state. 18 U.S.C. § 228(a). Mr.
Kramer argued that his conviction under the CSRA was invalid because the
underlying state child-support order was a default judgment entered by a court

                                         -8-
assuming that Custis intimates a general jurisdictional defect exception, Mr.

Millan-Torres would still not prevail. This is so because, even if he was a

juvenile at the time of his prior conviction, under California law the adult court

did not lack subject matter jurisdiction over him. See In re Harris, 855 P.2d 391,

404 (Cal. 1993). While it is true that California juvenile courts generally have

jurisdiction over juvenile offenders, see Cal. Welf. & Inst. Code § 602, because

the adult and juvenile courts are considered separate divisions within the county

superior court, when the adult court unknowingly sentences a juvenile its actions

simply “constitute[] an excess of jurisdiction, not a lack of fundamental

jurisdiction.” In re Harris, 855 P.2d at 404. As such, this is simply not a case

where the alleged error in the underlying conviction rises to the same level of

“jurisdictional defect” as that contemplated in Custis.

2.    Was Mr. Millan-Torres’s sentence properly enhanced for a prior “drug-
      trafficking offense”?



lacking personal jurisdiction over him. Pointing to Custis, the government argued
Mr. Kramer’s collateral attack was not appropriate. However, the Seventh Circuit
concluded that in deciding whether a collateral attack is permissible under Custis
it must “focus on the particular statutory scheme at issue and decide whether
Congress expected courts to evaluate the validity of the underlying judgment.”
Id. at 853. And based on the circumstances before it, the court concluded that
“there is no indication that . . . Congress ever intended to abrogate the traditional
rule that a default judgment procured without personal jurisdiction is a nullity.”
Id. at 857. Thus, the Seventh Circuit based its decision on the statutory analysis
suggested in Custis, and not the decision’s “jurisdictional defect” language, as is
being requested of us in this case.


                                         -9-
      Next, Mr. Millan-Torres argues his enhancement under § 2L1.2(b)(1)(A)(I)

was in error because the California statute he was convicted under does not

establish that he was convicted of a drug-trafficking offense as defined in § 2L1.2

under the categorical approach adopted in Taylor v. United States, 495 U.S. 575

(1990). As Mr. Millan-Torres concedes, this argument is raised for the first time

on appeal, and thus we review for plain error. Fed. R. Crim. P. 52(b); Ruiz-Gea,

340 F.3d at 1185.

      The Taylor Court held that in deciding whether a prior conviction

constitutes a “crime of violence” under the Armed Career Criminal Act

(“ACCA”), 18 U.S.C. § 924(e), the trial court can only consider “the fact of

conviction and the statutory definition of the prior offense.” 495 U.S. at 602.

This has been termed a “categorical approach.” United States v. Martinez-

Candejas, 347 F.3d 853, 858 (10th Cir. 2003). In Taylor, the Court applied this

approach to convictions resulting from a verdict, and recently the Court extended

this holding to convictions resulting from a plea as well. Shepard v. United

States, __ U.S. __, 125 S. Ct. 1254 (2005). We have applied this categorical

approach in deciding whether a prior conviction is a “crime of violence” under

U.S.S.G. § 2L1.2(b)(1)(A)(ii). See United States v. Frias-Trujillo, 9 F.3d 875,

877 (10th Cir. 1993). However, as our opinion in Martinez-Candejas, makes

clear, the categorical approach does not apply to all of the predicate felony


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offenses listed in § 2L1.2. In Martinez-Candejas, we recognized that the Court’s

opinion in Taylor stressed 18 U.S.C. § 924(e)’s language defining a “crime of

violence” as a crime that “has as an element” the use or threat of force. Martinez-

Candejas, 347 F.3d at 858 (citations omitted). It was this specific wording that

indicated Congress’s intent to make the statute of conviction, and not the

underlying offense conduct, controlling as to whether the enhancement provision

applies. 2 However, when the enhancement provision is not defined “in terms of

offenses and their elements,” there is no like indication that the underlying facts

are irrelevant in applying the enhancement. Id. at 859. As such, we concluded

that the categorical approach does not apply to § 2L1.2(b)(1)(vii)’s enhancement

for “an alien smuggling offense,” as this category is not defined in terms of

specific elements or offenses. Id.

      Whether § 2L1.2(b)(1)(i)’s enhancement for “a drug trafficking offense” is

subject to the categorical approach as Mr. Millan-Torres argues is a question we

have not yet decided. Cf. United States v. Madera-Madera, 333 F.3d 1228, 1233

(11th Cir. 2003) (holding that § 2L1.2’s “drug-trafficking offense” category is

also not defined in terms of elements like other categories within this provision).



      2
        In Shepard, the Court reiterated that Taylor is a decision of statutory
interpretation. 125 S. Ct. at 1261. Further, the Court noted that Congress’s
failure to modify the statute in the 15 years since Taylor was decided indicates the
decision is in accord with Congressional intent. Id.

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Because we conclude we would reach the same result whether we applied the

categorical approach or considered the facts underlying Mr. Millan-Torres’s

conviction, we do not need to decide the issue in this case either. 3 The

application notes to § 2L1.2 define “drug trafficking offense” as “an offense . . .

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,

comment. (n.1(B)(iv)) (2003). The California statute Mr. Millan-Torres was

convicted under provides that every person who “transports, imports . . ., sells,

furnishes, administers, or gives away, or offers to transport, import . . ., sell,

furnish, administer, or give away, or attempts to import . . . or transport [a

controlled substance] . . ., shall be punished.” Cal. Health & Safety Code §

11352.

      Comparing these two provisions, each of the acts prohibited in the

California statute fall within the Guideline definition of a “drug trafficking

offense.” Madera-Madera, 333 F.3d at 1233 (“[T]he Commission defined drug

trafficking by the type of conduct prohibited by the state statute. Therefore, the



      3
        Given our resolution of this issue, Mr. Millan-Torres’s argument that the
district court lacked sufficient “judicially noticeable facts” to conclude he was
convicted of a drug-trafficking offense is foreclosed and we will not address it
further. See Aplt. Br. at 16-18.

                                         - 12 -
question is not whether the wording of the [state] statute exactly matches the

Application Note to the Guideline, but rather whether the federal definition of

drug trafficking in the Guidelines is satisfied by [the state statute].) Indeed, the

only close question relates to California’s “offers to . . .” language. However,

because the Guideline specifies that offenses which “prohibit” the listed drug

activities are drug-trafficking offenses, this language is covered as well.

California’s statute makes clear that as a matter of policy it has chosen to prohibit

certain drug activities, like importation, by punishing not only the completed

performance of such acts, but also the “offers to” or “attempts to” perform such

acts. See Madera-Madera, 333 F.3d at 1231-32 (discussing policy of state law in

determining whether conviction meets § 2L1.2’s definition of drug-trafficking

offense). And whereas the definition does not specify the offense must punish

only completed acts, we find that the California statute, as a whole, falls within

the “family of offenses” contemplated by the Guideline. Martinez-Candejas, 347

F.3d at 856. Thus, the district court did not plainly err in enhancing Mr. Millan-

Torres’s sentence under § 2L1.2 provision. 4




      4
        Mr. Millan-Torres also argues that given the nature of California’s statute,
his prior conviction does not conclusively establish an aggravated felony
rendering invalid an enhancement on this basis as well. However, because the
district court did not enhance Mr. Millan-Torres’s sentence on the basis of an
aggravated felony conviction, we need not address this argument.

                                         - 13 -
B.    Booker Argument

      Finally, in supplemental briefing, Mr. Millan-Torres argues that his

sentence violates Booker v. United States, __ U.S. __, 125 S. Ct. 738, because the

district court applied the Guidelines in a mandatory rather than advisory fashion.

He does not claim a Sixth Amendment violation, however, making this a non-

constitutional Booker error case. 5 United States v. Gonzalez-Huerta, 403 F.3d

727, 731-32 (10th Cir. 2005) (en banc). As this argument was also raised for the

first time on appeal, we review it for plain error as well. Id. at 732.

      As we held in Gonzalez-Huerta, the first two prongs of the plain error

analysis are satisfied in non-constitutional Booker error cases. However, in this

case it is clear that Mr. Millan-Torres cannot satisfy the fourth prong of the

analysis. Under prong four, the defendant must establish that the sentencing error

“seriously affects the fairness, integrity, or public reputation of judicial

proceedings” before we can exercise our discretion and remand for resentencing.

Id. at 736 (citation omitted). This is a demanding standard and is only met “in

those rare cases in which core notions of justice are offended.” Id. at 739.



      5
       Mr. Millan-Torres argues that there was constitutional error as the
mandatory application of the Guidelines violated his Fifth Amendment right to
due process. However, he does nothing more than boldly assert this violation
without establishing the “essential predicate for a due process claim,” which we
specifically rejected in Gonzalez-Huerta. 403 F.3d 727, 732 n.2 (10th Cir. 2005)
(en banc).

                                         - 14 -
      Here, as in Gonzalez-Huerta, Mr. Millan-Torres merely provided a citation

to United States v. Hughes, 396 F.3d 374, 381 (4th Cir. 2005), in support of the

fourth prong, which is woefully insufficient. Gonzalez-Huerta, 403 F.3d at 737

(“Providing this quotation is a far cry from establishing that a miscarriage of

justice would occur if we do not remand.”); see also United States v. Yazzie, 407

F.3d 1139, 1146 (10th Cir. 2005) (en banc) (same). Further, the facts here are not

comparable to those in the cases where we have found the fourth prong satisfied.

See United States v. Trujillo-Terrazas, 405 F.3d 814, 820-21 (10th Cir. 2005)

(fourth prong satisfied where prior arson conviction involving $35 in damage

resulted in 16-level increase and district judge commented he wished he did not

have to impose the sentence); United States v. Williams, 403 F.3d 1188, 1200

(10th Cir. 2005) (fourth prong satisfied where significant enhancement was based

on momentary gun possession and district judge commented the applicable

Guideline sentence was “gross,” “immoral”). Mr. Millan-Torres pled guilty to

illegal reentry and in so doing admitted to the facts underlying his prior

conviction. The district court then considered the PSR and its addendums and

reduced Mr. Millan-Torres’s criminal history category one level as recommended

finding his criminal history was over-represented at the higher level and

sentenced him at the bottom of the applicable guideline range. There is nothing

in the record evidencing the court was uncomfortable with the resulting sentence,


                                        - 15 -
or that the facts here warrant a different conclusion. As such, we cannot conclude

that Mr. Millan-Torres’s sentence is “‘particularly egregious’ or a ‘miscarriage of

justice.’” Gonzalez-Huerta, 403 F.3d at 738.

      AFFIRMED.



                                       Entered for the Court


                                       Paul J. Kelly, Jr.
                                       Circuit Judge




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