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

                                                 FILED
                                                                           August 14, 2009
                                     No. 08-51055
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

RICARDO SALAMANCA-ROSAS, also known as Eric Gaytan-Perez,

                                                   Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                          USDC No. 3:08-CR-1801-ALL


Before HIGGINBOTHAM, CLEMENT, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Ricardo Salamanca-Rosas appeals the sentence imposed following his
guilty plea conviction for illegal reentry into the United States in violation of 8
U.S.C. § 1326. He argues that there was insufficient evidence to establish that
he had prior drug related convictions in Oregon and California. We VACATE
and REMAND.
       We review a district court’s application of the Sentencing Guidelines de
novo; relevant factual findings are reviewed for clear error. United States v.

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
                                  No. 08-51055

Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008). The Government bears
the burden of proving by a preponderance of the relevant and reliable evidence
the facts supporting a sentencing enhancement, including prior convictions.
United States v. Rodriguez, 523 F.3d 519, 524 (5th Cir. 2008). A district court’s
determination that a particular prior conviction is usable in calculating a
criminal history score is a legal question. Cisneros-Gutierrez, 517 F.3d at 764.
      Salamanca-Rosas has not shown error in determining that he had three
prior Oregon convictions for delivery of a controlled substance. Although the
defendant’s name in the supporting documents for two of the convictions is
spelled without the final “s” (Salamanca-Rosa), all three cases give a date of
birth and SID number for the defendant. The current Presentence Report (PSR)
includes the same date of birth and SID number for Salamanca-Rosas. The
defendant has not asserted that these are incorrect.
      The district court was not clearly in error in concluding that
Salamanca-Rosas had three prior Oregon convictions for delivery of a controlled
substance.
      The district court, however, erred in using the prior California conviction
to calculate Salamanca-Rosas’s criminal history. The Government may use the
sort of reports attached to this PSR to show prior convictions. See United States
v. Neri-Hernandes, 504 F.3d 587, 591 (5th Cir. 2007), cert. denied, 128 S. Ct.
1106 (2008). The problem, though, is the absence of proof that the person named
in the 1997 California judgment, Eric Perez, is the defendant here. See United
States v. Floyd, 343 F.3d 363, 372 (5th Cir. 2003) (“[T]here must be an acceptable
evidential basis for the court’s factfindings at the sentencing hearing.”). Neither
the information contained in the criminal complaint nor the documentation
attached to the PSR as Exhibit D establish that Salamanca-Rosas is the same
person who was convicted in the 1997 California judgment of conviction under
the name of Eric Perez.      Therefore, the district court erred in using this



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conviction to calculate Salamanca-Rosas’s criminal history category.            See
Cisneros-Gutierrez, 517 F.3d at 764.
      Because Salamanca-Rosas’s objection was preserved at trial, we review the
record de novo to determine whether the district court’s error was harmless.
United States v. Lopez-Urbina, 434 F.3d 750, 765-66 (5th Cir. 2005). An “error
is harmless only if it did not affect the selection of the sentence imposed.” Id. at
765 (internal quotation marks and citation omitted). The Government, as the
party seeking to uphold the sentence, bears the burden of demonstrating that
the error was harmless. Id.
      Without the three points assigned to the California conviction,
Salamanca-Rosas’s criminal history score would have been 9, rather than 12.
A criminal history score of 9 would have resulted in a criminal history category
of IV, rather than V. Taking these adjustments into account, Salamanca-Rosas’s
total offense level of 21 and his adjusted criminal history category of IV would
have resulted in an advisory guideline range of 57 to 71 months, rather than 70
to 87 months. Because the district court’s error affected the selection of the
sentence imposed, the error was not harmless. Id. Therefore, Salamanca-Rosas’s
sentence is vacated, and the case is remanded to the district court for
resentencing.
      However, this absence of evidence in the appellate record does not bar the
same prior conviction from being used at resentencing, if the Government can
prove the necessary identity.
      Salamanca-Rosas argues that the district court erred in imposing a 16-
level enhancement under U.S.S.G. § 2L1.2(b)(1)(A) based on his prior Oregon
conviction for delivery of a controlled substance. He argues that under Oregon
law the definition of “delivery” includes attempted transfer, and because it is
unclear whether his conviction was for attempted transfer, the conviction does
not constitute a drug trafficking offense under Section 2L1.2.



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                                 No. 08-51055

      The Oregon statute at issue prohibits the manufacture or delivery of a
controlled substance. Ore. Rev. Stat. Ann. § 475.992(1). The term “delivery” is
defined as “the actual, constructive or attempted transfer, . . . from one person
to another of a controlled substance.” Id. § 475.005(8).
      Salamanca-Rosas has not shown that the district court erred in imposing
a 16-level enhancement under Section 2L1.2(b)(1)(A) based on his prior Oregon
conviction for delivery of a controlled substance. The statutory language of
Section 475.992 does not include conduct that falls outside the definition of a
drug trafficking offense under Section 2L1.2. The application notes to Section
2L1.2 expressly provide that “[p]rior convictions counted under subsection (b)(1)
include the offenses of aiding and abetting, conspiring, and attempting, to
commit such offenses.” U.S.S.G. § 2L1.2 cmt. n.5. Moreover, the Ninth Circuit
has affirmed a 16-level sentence enhancement under Section 2L1.2(b)(1)(A)
based on an Oregon conviction for delivery of a controlled substance under
Section 475.992. United States v. Chavaria-Angel, 323 F.3d 1172, 1177-78 (9th
Cir. 2003). We find its reasoning persuasive. The district court did not err in
imposing this 16-level sentencing enhancement.
      The sentence is vacated, and the case is remanded to the district court for
resentencing. On remand, the Government should be permitted to supplement
the record with additional documents regarding Salamanca-Rosas’s California
conviction to support the sentence it urges.
      AFFIRMED IN PART; VACATED AND REMANDED IN PART.




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