     Case: 14-50321       Document: 00513342673         Page: 1     Date Filed: 01/14/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                             United States Court of Appeals
                                                                                      Fifth Circuit
                                     No. 14-50321                                   FILED
                                   Summary Calendar                           January 14, 2016
                                                                               Lyle W. Cayce
                                                                                    Clerk
UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

ADRIAN RIOS RODRIGUEZ,

                                                  Defendant - Appellant


                   Appeals from the United States District Court
                         for the Western District of Texas
                              USDC No. 3:13-CR-2492


Before BARKSDALE, CLEMENT, and ELROD, Circuit Judges.
PER CURIAM: *
       Adrian Rios Rodriguez pleaded guilty to attempted illegal re-entry after
deportation, in violation of 8 U.S.C. § 1326. At sentencing, the court applied a
16-level enhancement to the offense level, pursuant to Sentencing Guideline
§ 2L1.2(b)(1)(A)(i) (“[i]f the defendant previously was deported, or unlawfully
remained in the United States, after [ ] a conviction for a felony that is [ ] a




       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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.
     Case: 14-50321       Document: 00513342673          Page: 2   Date Filed: 01/14/2016


                                          No. 14-50321

drug trafficking offense for which the sentence imposed exceeded 13 months
. . . increase by 16 levels . . . . ”).
       In concluding Rios’ prior California convictions were drug-trafficking
offenses, the court relied on a state-court criminal complaint (charging Rios
with transportation of a controlled substance and possession for sale of a
controlled substance), and a “minute order” stating the complaint was used as
the charging document. Both documents were included in an addendum to
Rios’ Presentence Investigation Report (PSR).
       Rios did not object in district court to either:            the inclusion of the
complaint and minute order; or, the assessment of the 16-level enhancement.
The court adopted the PSR, and sentenced Rios within the Guidelines advisory
sentencing range to 41 months’ imprisonment. In challenging that sentence,
Rios contends the court erred in construing the state-court complaint as the
charging document for his prior crimes.
       Although post-Booker, the Guidelines are advisory only, and a properly
preserved objection to an ultimate sentence is reviewed for reasonableness
under an abuse-of-discretion standard, the district court must still properly
calculate the advisory Guidelines-sentencing range for use in deciding on the
sentence to impose. Gall v. United States, 552 U.S. 38, 48–51 (2007). But, as
Rios concedes, because he did not raise in district court the issue presented
here, review is only for plain error. E.g., United States v. Broussard, 669 F.3d
537, 546 (5th Cir. 2012). Under that standard, Rios must show a forfeited plain
(clear or obvious) error that affected his substantial rights. Puckett v. United
States, 556 U.S. 129, 135 (2009). If he does so, we have the discretion to correct
the error, but should do so only if it “seriously affect[s] the fairness, integrity,
or public reputation of the proceedings”. Id.




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    Case: 14-50321    Document: 00513342673    Page: 3   Date Filed: 01/14/2016


                                No. 14-50321

      Because Rios’ California convictions (pursuant to California Health and
Safety Code §§ 11352(a) and 11351) are not categorically drug-trafficking
offenses for purposes of Guideline § 2L1.2, the modified categorical approach
is employed to determine whether his prior convictions support the
enhancement. E.g., United States v. Gomez-Alvarez, 781 F.3d 787, 792–94 (5th
Cir. 2015). In making that determination, we, like the district court, are
entitled to rely upon the charging document for Rios’ state-court offenses to
determine whether they constituted drug-trafficking offenses. See Shepard v.
United States, 544 U.S. 13, 16 (2005).
      Rios maintains the court erred because there was a possibility that the
state-court complaint was not the final charging document. He asserts the
Government must show a separate, superseding information was not filed,
although he concedes nothing in the record indicates any such document was
ever filed. Because nothing in the record affirmatively casts doubt upon, or
creates ambiguity regarding, whether the state-court complaint constitutes the
charging document, the district court did not commit the requisite clear-or-
obvious error. See Gomez-Alvarez, 781 F.3d at 795–96.
      AFFIRMED.




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