                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 06-4362



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


ANTONIO ALVAREZ-GRANADOS,     a/k/a   Hiriberto
Reyes-Macedo,

                                              Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Robert J. Conrad, Jr.,
District Judge. (3:05-cr-00047)


Submitted:   May 11, 2007                     Decided:   May 30, 2007


Before WILKINSON, WILLIAMS, and MICHAEL, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Cecilia Oseguera, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA,
INC., Charlotte, North Carolina, for Appellant. Gretchen C. F.
Shappert, United States Attorney, Jonathan A. Vogel, Assistant
United States Attorney, Charlotte, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

            Antonio Alvarez-Granados pled guilty to unlawful reentry

by a deported alien, in violation of 8 U.S.C. § 1326(a), (b)(2)

(2000),    and     was   sentenced     to   sixty-four     months    imprisonment.

Alvarez-Granados’        appeal   of    his     sentence    raises    two   issues:

(1) whether the district court plainly erred in sentencing him to

more than two years imprisonment under 8 U.S.C. § 1326(b)(2) on the

ground that he had previously been deported after conviction for an

aggravated felony,1 and (2) whether the district court erred in

making a sixteen-level enhancement under U.S. Sentencing Guidelines

Manual §    2L1.2(b)(1)(A)(i)          (2004),    based    on   Alvarez-Granados’

pre-deportation conviction of a California drug trafficking offense

for which the sentence imposed was more than thirteen months.                   For

the reasons explained below, we affirm the sentence.

            Alvarez-Granados was deported in 1990, 1992, and 1995,

each time after being convicted in California of a state drug

offense. He was convicted once of felony sale or transportation of

marijuana     in    violation     of    California    Health     &    Safety   Code

§ 11360(a) (West 2007), and twice of felony sale or transportation




     1
      Title 8, section 1326(b)(2) provides a maximum sentence of
twenty years for a defendant whose “removal was subsequent to a
conviction for commission of an aggravated felony;” otherwise, the
maximum sentence is two years under § 1326(a), or ten years under
§ 1326(b)(1) if the defendant was deported after conviction of a
non-aggravated felony.

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of a controlled substance (cocaine base) in violation of California

Health & Safety Code § 11352(a) (West 2007).

           Alvarez-Granados first suggests that he should not have

been sentenced to more than two years imprisonment because his

prior convictions were not aggravated felonies under 8 U.S.C.

§ 1326(b)(2), as defined in 8 U.S.C. § 1101(43)(B) or 18 U.S.C.A.

§ 924(c)(2) (West Supp. 2007).          Because he did not raise this issue

in the district court, we review the issue for plain error.                   United

States v. Olano, 507 U.S. 725, 732-37 (1993).              We conclude that,

even if the district court erred in finding that Alvarez-Granados’

prior offenses were aggravated felonies, the error did not affect

his substantial rights because he had several times been deported

subsequent to felony convictions.               Regardless of the specific

offense, these prior felony convictions subjected Alvarez-Granados

to a ten-year maximum sentence under § 1326(b)(1).

           Next,      Alvarez-Granados          contends   that     his        prior

convictions do not qualify as drug trafficking offenses under the

definition set out in the commentary to § 2L1.2 because there is no

reliable   evidence     as   to   the    specific    conduct   underlying        his

convictions,    and   neither     solicitation      (offers    to   commit     drug

offenses) nor transportation of drugs, both possible bases for

conviction under § 11352 and § 11360, are included in the § 2L1.2

definition of a drug trafficking offense.               The district court’s

determination    that    a   prior      conviction    qualifies     as    a    drug


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trafficking conviction under USSG § 2L1.2(b)(1)(A) is an issue of

guideline    interpretation        which   is    reviewed       de   novo.      United

States v. Navidad-Marcos, 367 F.3d 903, 907 (9th Cir. 2004).

             Generally, when the fact of a prior conviction does not

categorically establish the nature of the prior offense, with the

result that a fact about the prior conviction is in dispute, the

sentencing court may consider only “the charging document, the

terms   of   a    plea    agreement,   the   plea    colloquy,       the     statutory

definition, or any explicit finding of the trial judge to which the

defendant assented or other admissions of the defendant” to resolve

the issue.       United States v. Collins, 412 F.3d 515, 521 (4th Cir.

2005) (citing Shepard v. United States, 544 U.S. 13, 25 (2005));

see also Taylor v. United States, 495 U.S. 575 (1990).

             However,        Alvarez-Granados’      prior       convictions      were

unquestionably        drug    trafficking       offenses    under      the     current

definition of the term in the commentary to § 2L1.2, which requires

only that the defendant have been convicted under a statute that

prohibits    “the     manufacture,     import,      export,      distribution,       or

dispensing       of   a   controlled   substance,”         or    possession     of   a

controlled substance with the intent to do any of the above.                      USSG

§ 2L1.2, comment. (n.1(B)(iv)).                Application Note 5 adds that

“[p]rior convictions of offenses counted under subsection (b)(1)

include the offenses of aiding and abetting, conspiring, and




                                       - 4 -
attempting to commit such offenses.” The California statutes under

which Alvarez-Granados was convicted fall within this definition.

                Alvarez-Granados relies on Ninth Circuit decisions that

have held, pursuant to Taylor, that convictions under California

Health      &   Safety      Code   §   11360(a)    and   similar    California      drug

statutes do not categorically qualify as drug trafficking offenses

under § 2L1.2 because the statutes are overbroad.                          See, e.g.,

United States v. Almazan-Becerra, 482 F.3d 1085, 1088 (9th Cir.

2007); United States v. Rivera-Sanchez, 247 F.3d 905, 908-09 (9th

Cir.       2001)     (interpreting      pre-2001   version   of     §    2L1.2).2    In

Alvarez-Granados’ case, the charging documents recite the range of

conduct proscribed by California Health & Safety Code § 11352(a)

and § 11360(a), but do not identify specifically what offense he

committed.            Other   available    court    documents      relating    to    the

offenses        do    not     provide    acceptably      reliable       evidence    that

Alvarez-Granados committed a drug trafficking crime under Ninth

Circuit case law.




       2
      Before the 2001 amendment, the sixteen-level enhancement in
§ 2L1.2 was triggered by a prior conviction for an “aggravated
felony,” as defined in 8 U.S.C. § 1101(a)(43) (2000). Title 8,
§ 1101(a)(43)(B) provides that one type of “aggravated felony” is
“illicit trafficking in a controlled substance (as defined in
section 802 of Title 21), including a drug trafficking crime (as
defined in section 924(c) of Title 18). . . .” Title 18, § 924(c)
defines a “drug trafficking crime” as “any felony punishable under
the Controlled Substances Act (21 U.S.C. 801 et seq.), the
Controlled Substances Import and Export Act (21 U.S.C. 951 et
seq.), or chapter 705 of title 46.”

                                          - 5 -
          We agree with the government that a different approach is

necessary in light of the current definition of a “drug trafficking

offense” in § 2L1.2 and the fact that the acts prohibited in the

California statute all come within its definition of a “drug

trafficking offense.” See United States v. Madera-Madera, 333 F.3d

1228, 1233 (11th Cir. 2003) (holding that “the question is not

whether the wording of the [state] statute exactly matches the

Application Note to the Guideline, but rather whether the federal

definition of drug trafficking in the Guidelines is satisfied by

[the state statute]”).      Id.

          The      Ninth   Circuit        has   rejected       Madera-Madera    as

unpersuasive because it “failed to cite Taylor[ v. United States,

495 U.S. 575 (1990)] or undertake a proper Taylor categorical

analysis.” United States v. Villa-Lara, 451 F.3d 963, 965 n.2 (9th

Cir. 2006).        The Tenth Circuit has held that Madera-Madera’s

application is limited to the Georgia drug trafficking statute at

issue in that case.        United States v. Herrera-Roldan, 414 F.3d

1238, 1241-43 (10th Cir. 2005).           However, these decisions overlook

the fact that, for application of the sixteen-level enhancement,

§ 2L1.2 currently requires only that the defendant have been

convicted of some offense (but not any particular offense) under a

statute   that      “prohibits      the     manufacture,       import,   export,

distribution or dispensing of a controlled substance . . . or the

possession    of   a   controlled    substance     .   .   .    with   intent   to


                                     - 6 -
manufacture,     import,     export,     distribute       or    dispense.”         USSG

§   2L1.2,    comment.     (n.1(B)(iv)).       Alvarez-Granados’          California

convictions meet this requirement.             The current § 2L1.2 definition

does not require that the defendant have been convicted of a drug

trafficking offense, only that he have been convicted of some

offense under a statute that prohibits drug trafficking.

             Alvarez-Granados’        argument     that    he    might    have     been

convicted of a non-trafficking offense such as transportation of

drugs for personal use makes sense only under the definition of

drug trafficking offense that was used in § 2L1.2 before the 2001

amendment.     It has no merit under the definition currently in use.

Cf. United States v. Mills, ___ F.3d ___, 2007 WL 1310303, at *3-5

(4th   Cir.    May    7,    2007)     (rejecting       defendant’s       attempt    to

incorporate federal statutory definition of “counterfeit substance”

into guideline where term is undefined and holding that omission of

definition was intentional).             Therefore, we conclude that the

district court did not err in holding that Alvarez-Granados had

previously     been    deported       after    being    convicted        of   a    drug

trafficking crime as defined in § 2L1.2.

             Accordingly, we affirm the sentence.                We dispense with

oral   argument      because    the    facts     and    legal    contentions       are

adequately presented in the materials before the court and argument

would not aid the decisional process.


                                                                              AFFIRMED

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