           Case: 14-14008   Date Filed: 07/15/2015   Page: 1 of 5


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 14-14008
                        Non-Argument Calendar
                      ________________________

               D.C. Docket No. 8:14-cr-00070-WJC-AEP-1



UNITED STATES OF AMERICA,

                                                           Plaintiff - Appellee,

                                  versus

LEOPOLDO ANTUNEZ-CORNELIO,
a.k.a. Juan Carlos Simon-Castro,

                                                        Defendant - Appellant.

                      ________________________

               Appeal from the United States District Court
                   for the Middle District of Florida
                     ________________________

                             (July 15, 2015)

Before MARTIN, JULIE CARNES and ANDERSON, Circuit Judges.

PER CURIAM:
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      Leopoldo Antunez-Cornelio appeals his 70-month sentence for unlawfully

entering the United States and unlawfully re-entering the United States after having

been deported. On appeal, Antunez-Cornelio argues that the district court erred by

applying a 16-level enhancement under United States Sentencing Guidelines

§ 2L1.2(b)(1)(A). Specifically, he argues that his prior conviction under Florida’s

drug trafficking statute, Fla. Stat. § 893.135, is not a “drug trafficking offense”

under USSG § 2L1.2. We review de novo the district court’s application of the

Sentencing Guidelines. United States v. Madera-Madera, 333 F.3d 1228, 1231 n.2

(11th Cir. 2003).

      A defendant convicted of unlawfully re-entering the United States receives a

16-level enhancement if he or she was previously deported following a conviction

for a felony drug trafficking offense that carried more than a 13-month sentence.

USSG § 2L1.2(b)(1)(A)(i). A drug trafficking offense is “an offense under federal,

state, or local law that prohibits,” among other things, the “distribution, or

dispensing of, or offer to sell a controlled substance . . . or the possession of a

controlled substance . . . with intent to . . . distribute[] or dispense.” Id. § 2L1.2

cmt. n.1(B)(iv).

      The district court did not err in determining that Antunez-Cornelio’s prior

conviction was a drug trafficking offense qualifying him for an enhancement under

USSG § 2L1.2(b)(1)(A). Under Florida’s drug trafficking statute,


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       [a]ny person who knowingly sells, purchases, manufactures, delivers,
       or brings into [Florida], or who is knowingly in actual or constructive
       possession of, 14 grams or more of amphetamine . . . or
       methamphetamine . . . commits a felony of the first degree, which
       felony shall be known as “trafficking in amphetamine.”

§ 893.135(1)(f). Florida’s trafficking statute is divisible because it sets out one of

its elements in the alternative. See Descamps v. United States, 570 U.S. ___, ___,

133 S. Ct. 2276, 2281 (2013). Because some convictions under Florida’s

trafficking statute are drug trafficking offenses and others are not,1 we apply the

modified categorical approach and look to a limited class of documents to

determine which of the alternative elements formed the basis of Antunez-

Cornelio’s conviction. See id. The defendant’s assent to a factual proffer during a

plea colloquy may be used to establish which alternative formed the statutory basis

of conviction. See United States v. Diaz-Calderone, 716 F.3d 1345, 1348, 1351

(11th Cir. 2013) (holding that defendant’s assent to factual basis after pleading

guilty was enough to show which crime he committed for purposes of a crime-of-

violence enhancement). Though it is uncertain whether a factual proffer following

a “best interests” plea can be used for the same purpose absent the defendant’s




1
  For example, mere purchase is not a drug trafficking offense under USSG § 2L1.2. See United
States v. Shannon, 631 F.3d 1187, 1189 (11th Cir. 2011) (purchase of cocaine is not a
“controlled substance offense” under USSG § 4B1.2(b), which is substantially similar to the
definition of a “drug trafficking offense” in USSG § 2L1.2, see United States v. Orihuela, 320
F.3d 1302, 1304 (11th Cir. 2003) (per curiam)). However, even Antunez-Cornelio recognizes
that delivery under § 893.135(1)(f) falls within the drug trafficking definition in USSG § 2L1.2.
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assent, id. at 1351, here the district court did not err by relying on Anunez-

Cornelio’s factual basis.

      At the plea colloquy, the State agreed to reduce the charge against Antunez-

Cornelio to Trafficking in Amphetamine (14 to 28 grams). Antunez-Cornelio’s

attorney stated that he would “plead[] guilty in his best interest,” and then pleaded

guilty. When the court asked for the factual basis for the charge, the State said that

Antunez-Cornelio “delivered 29.2 grams of methamphetamine to law enforcement

in exchange for $1,500.” When asked by the court whether he would like to make

any changes to the factual proffer, Antunez-Cornelio’s attorney replied, “further

testimony would reveal that the weight was 27.9. That’s the only addition.” The

court “f[ound] the factual basis for his plea as reflected in the criminal report

affidavit” and accepted his guilty plea. Antunez-Cornelio did not object to the

state court’s finding regarding the factual basis, nor did he assert his factual

innocence during the plea colloquy.

      While Antunez-Cornelio did not admit to delivering drugs—indeed, his

“best interest” plea suggests the opposite—this does not affect our analysis of

which alternative element formed the basis of his conviction. Antunez-Cornelio

assented to the proffer because he made a specific objection, disputing the quantity

of drugs involved, but did not challenge the fact that he delivered, rather than

possessed, the drugs. This establishes that delivery of methamphetamine was the


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statutory basis for his conviction. As Antunez-Cornelio conceded before the

district court, a conviction for delivering methamphetamine is a drug trafficking

offense and qualifies him for an enhancement under USSG § 2L1.2(b)(1)(A).

      Upon review of the record and consideration of the parties’ briefs, we find

no error in Antunez-Cornelio’s total sentence.

      AFFIRMED.




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