     Case: 12-41348      Document: 00512523365         Page: 1    Date Filed: 02/05/2014




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


                                    No. 12-41348                                    FILED
                                  Summary Calendar
                                                                             February 5, 2014
                                                                               Lyle W. Cayce
                                                                                    Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

EDWIN ANTONIO VASQUEZ-ALVARADO,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 7:12-CR-478-1


Before REAVLEY, JONES, and PRADO, Circuit Judges.
PER CURIAM: *
       Edwin Antonio Vasquez-Alvarado appeals the sentence imposed
following his guilty plea conviction for being found unlawfully in the United
States after deportation in violation of 8 U.S.C. § 1326. He contends that the
district court plainly erred when it enhanced his sentence based on a finding
that his prior New York convictions for criminal sale of a controlled substance
in the third degree qualified as drug trafficking offenses for purposes of


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 12-41348     Document: 00512523365     Page: 2   Date Filed: 02/05/2014


                                  No. 12-41348

U.S.S.G. § 2L1.2(b)(1)(A)(i). Specifically, Vasquez-Alvarado argues that the
New York statute under which he was convicted is broader than the drug
trafficking offense definition set forth in the commentary to § 2L1.2 because it
criminalizes the sale of substances that are not listed as controlled substances
under federal law. Because the state court documents were insufficient to
narrow his convictions to qualifying drug trafficking offenses, he argues that
the district court’s application of the § 2L1.2(b)(1)(A)(i) enhancement was a
clear and obvious error.
      Vasquez-Alvarado did not object to the § 2L1.2(b)(1)(A)(i) enhancement
on the specific grounds raised in the instant appeal. Our review therefore is
for plain error. See United States v. Villegas, 404 F.3d 355, 358 (5th Cir. 2005).
To show plain error, Vasquez-Alvarado 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. See id.
      The state court documents provide that on August 2, 2000, Vasquez-
Alvarado was convicted of two counts of criminal sale of a controlled substance
in the third degree in violation of N.Y. PENAL LAW § 220.39. The Government
contends that at the time of Vasquez-Alvarado’s convictions, the 23 substances
identified in his opening brief were covered by the Controlled Substances Act
(CSA), 21 U.S.C. § 801, et seq. Vasquez-Alvarado concedes in his reply brief
that the Government is correct. He has therefore failed to demonstrate that
§ 220.39 is broader than the drug trafficking offense definition set forth in the
commentary to § 2L1.2 or that the district court committed a clear or obvious
error when it enhanced his sentence pursuant to § 2L1.2(b)(1)(A)(i).          See




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                             No. 12-41348

Puckett, 556 U.S. at 135.   Accordingly, the district court’s judgment is
AFFIRMED.




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