                         REVISED May 7, 2013

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

                               No. 11-40642                    FILED
                             Summary Calendar              February 28, 2013

                                                             Lyle W. Cayce
                                                                  Clerk
UNITED STATES OF AMERICA,

                                          Plaintiff - Appellee

v.

DIEGO DUQUE-HERNANDEZ,

                                          Defendant - Appellant


                Appeal from the United States District Court
                     for the Southern District of Texas


Before SMITH, PRADO, and HIGGINSON, Circuit Judges.
HIGGINSON, Circuit Judge:
      Diego Duque-Hernandez pleaded guilty to illegal reentry after deportation,
in violation of 8 U.S.C. § 1326(a) and (b), and was sentenced to 51 months of
imprisonment—the low end of his Guidelines range—and three years of
supervised release. He appeals his sentence, arguing that the district court
erred by applying a twelve-level adjustment to his base offense level for his
previous commission of a drug trafficking offense.
      Under § 2L1.2(b)(1)(B) of the Sentencing Guidelines, a twelve-level
adjustment to a defendant’s base offense level is applied if the defendant was
                                    No. 11-40642

previously convicted of “a felony drug trafficking offense for which the sentence
imposed was 13 months or less.” A drug trafficking offense is defined as “offense
under federal, state, or local law that prohibits the manufacture, import, export,
distribution, or dispensing of, or offer to sell a controlled substance (or a
counterfeit substance) or the possession of a controlled substance (or a
counterfeit substance) with intent to manufacture, import, export, distribute, or
dispense” U.S.S.G. § 2L1.2 cmt. Prior convictions involving the attempt to
commit such offenses are included within this definition. § 2L1.2 cmt.
      Duque-Hernandez was previously convicted of § 58-37-8(1)(a)(ii) of the
Utah Criminal Code, which makes it a felony “to knowingly and intentionally:
. . . distribute a controlled or counterfeit substance, or to agree, consent, offer, or
arrange to distribute a controlled or counterfeit substance.” The probable cause
statement on the second page of the charging document, which was sworn to by
a law enforcement officer, indicates that “the defendant offered to sell [an
undercover officer] a substance which was represented to be cocaine.” Noting
that the Guidelines were amended in 2009 to include offers of sale as drug
trafficking offenses under § 2L1.2(b)(1)(B), the presentence report recommended
applying the adjustment on that basis, and the district court adjusted upward
Duque-Hernandez’s base offense level accordingly.
      Because Duque-Hernandez did not object to the application of the
adjustment, our review is for plain error. United States v. Mondragon-Santiago,
564 F.3d 357 (5th Cir. 2009). To demonstrate plain error, he must show a
forfeited error that is clear or obvious and that affects his substantial rights. See
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.; see also
United States v. Escalante-Reyes, 689 F.3d 415, 425 (5th Cir. 2012) (en banc)
(declining “to adopt a blanket rule that once prejudice is found under the [third

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plain error prong], the error invariably requires correction”). The Supreme
Court recently reiterated the importance of this independent fourth assessment
we must make before correcting an error urged on appeal for the first time. See
Henderson v. United States, 568 U.S. ___, 2013 WL 610203, at *9 (Feb. 20, 2013)
(emphasizing that the plain error rule “contains other screening criteria” in
addition to the “error” and “plainness” requirements).
       The objection Duque-Hernandez failed to raise at a timely point concerns
the district court’s adjustment of his base offense level, pursuant to §
2L1.2(b)(1)(B), on the basis of his previous conviction under § 58-37-8(1)(a)(ii) of
the Utah Criminal Code.             He contends that the statute of conviction
encompasses conduct that falls outside the definition of a “drug trafficking
offense” under § 2L1.2(b)(1)(B), and suggests that the probable cause statement
included within his information is not Shepard-approved and should not have
been relied upon to support the application of the adjustment.
       Concluding that the sentencing error, if any, does not seriously affect the
fairness, integrity, or public reputation of judicial proceedings, we decline to
exercise our discretion to correct it. See United States v. Ellis, 564 F.3d 370,
378–79 (5th Cir. 2009) (“[E]ven if an increase in a sentence [can] be seen as
inevitably ‘substantial’ in one sense it does not inevitably affect the fairness,
integrity, or public reputation of judicial process and proceedings.”).                 Our
conclusion rests on three considerations.
       First, although we take no position on the propriety of using a probable
cause statement included within a charging document to ascertain whether a
prior state conviction qualifies as a “drug trafficking offense” within the meaning
of § 2L1.2(b)(1)(B),1 we perceive no error in reviewing this statement to assess

       1
         The Fourth Circuit has held that affidavits of probable cause that are a part of the
charging papers, or that are expressly incorporated into the charging papers, may be
considered in determining the appropriateness of sentencing enhancements. See United States
v. Kirksey, 138 F.3d 120, 126 (4th Cir. 1998).

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whether the application of the drug trafficking adjustment seriously affected the
fairness, integrity, or public reputation of the proceedings, cf. United States v.
Trejo, 610 F.3d 308, 313 (5th Cir. 2010) (“In assessing factual sufficiency under
the plain error standard, we may look beyond those facts admitted by the
defendant during the plea colloquy and scan the entire record for facts
supporting his conviction.”). In this instance, reference to the probable cause
statement included within the information to which Duque-Hernandez pleaded
guilty indicates that he offered to sell cocaine to an undercover officer, a fact
that, if proved or admitted, would have triggered the drug trafficking
adjustment.
      Second, we point out that Duque-Hernandez and his counsel were well-
positioned to object to the drug trafficking adjustment, having previously raised
the same argument on appeal to contest the sentence imposed for his prior
illegal reentry conviction. See United States v. Duque-Hernandez, 227 F. App’x
326 (5th Cir. 2007). Yet counsel for Duque-Hernandez broadly stated, “We agree
with the scoring”; or, in a light most favorable, he neglected to interpose the very
objection he had asserted previously.
      Finally, we note that Duque-Hernandez’s sentence of 51 months of
imprisonment has strong foundation. As his three prior federal illegal reentry
convictions demonstrate, Duque-Hernandez has persistently disregarded the
immigration laws of the United States. He has used aliases to evade detection
and, once here, has violated the country’s drug laws. He has previously been
convicted of selling cocaine to an undercover officer, and, on this occasion, was
captured attempting to enter the country with duffel bags full of illegal narcotics
on behalf of a Mexican cartel. Among other crimes, Duque-Hernandez has also
been convicted of domestic violence and carrying a concealed firearm.
      The judgment of sentence is AFFIRMED.



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