     Case: 16-20417      Document: 00514011895         Page: 1    Date Filed: 05/30/2017




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

                                    No. 16-20417                                FILED
                                  Summary Calendar                          May 30, 2017
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

LEONEL FAJARDO-GALVAN, also known as Leonel Galvan Fajardo, also
known as Leonel Fajardo Galvan,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:16-CR-64-1


Before HIGGINBOTHAM, PRADO, and HAYNES, Circuit Judges.
PER CURIAM: *
       Leonel Fajardo-Galvan appeals the 23-month sentence imposed after his
guilty plea conviction for being found unlawfully present in the United States
following a previous deportation subsequent to an aggravated felony conviction
in violation of 8 U.S.C. § 1326(a) and (b)(2). Fajardo-Galvan argues that the
district court plainly erred in applying a 12-level enhancement pursuant to



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 16-20417     Document: 00514011895   Page: 2     Date Filed: 05/30/2017


                                No. 16-20417

U.S.S.G. § 2L1.2(b)(1)(B) because his 2007 North Carolina conviction for
possession of cocaine with intent to sell or deliver was not a drug trafficking
offense because it did not qualify as a felony given that North Carolina’s
sentencing scheme precluded a sentence of more than one year in prison. He
also argues that the district court erred in denying his request that the
judgment reflect that he was convicted pursuant to § 1326(b)(1) because the
indictment was ambiguous as to whether he possessed marijuana or cocaine,
and a marijuana conviction would not support a finding that he had committed
an aggravated felony within the meaning of § 1326(b)(2).
      The Government argues that because Fajardo-Galvan affirmatively
stated that the application of the 12-level enhancement was proper based on
current case law and conceded that the guideline range was correctly
calculated, he invited any error and we should review only for manifest
injustice.    Although the Government’s argument is persuasive, see United
States v. Rodriguez, 602 F.3d 346, 350-51 (5th Cir. 2010), we need not consider
this issue as Fajardo-Galvan’s argument fails under the less stringent plain
error standard, see United States v. Fernandez-Cusco, 447 F.3d 382, 384 (5th
Cir. 2006).
      Fajardo-Galvan contends that the maximum sentence he faced under
North Carolina’s sentencing scheme was ten months, although the offense
itself is punishable by more than one year. We have rejected arguments like
Fajardo-Galvan’s in two unpublished opinions, United States v. Selvan-Cupil,
603 F. App’x 242 (5th Cir.), cert. denied, 135 S. Ct. 2859 (2015), and United
States v. Castro-Magama, 465 F. App’x 370, 371-72 (5th Cir. 2012). In light of
the “legal landscape,” we cannot conclude that the district court’s application
of the § 2L1.2(b)(1)(B) enhancement was clear or obvious error. United States
v. Rodriguez-Parra, 581 F.3d 227, 230 (5th Cir. 2009).



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    Case: 16-20417   Document: 00514011895    Page: 3   Date Filed: 05/30/2017


                               No. 16-20417

     Fajardo-Galvan concedes that a conviction for possession of cocaine with
intent to sell or deliver qualifies as an aggravated felony.       Given the
documentary evidence in the record, we find no error in the district court’s
conclusion that his prior North Carolina conviction involved cocaine and that
the indictment’s reference to marijuana was a typographical error. See United
States v. Morrison, 713 F.3d 271, 279 (5th Cir. 2013); United States v. Neri-
Hernandes, 504 F.3d 587, 591-92 (5th Cir. 2007).
     Accordingly, the judgment of the district court is AFFIRMED.




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