     Case: 13-41007       Document: 00512722985        Page: 1    Date Filed: 08/05/2014




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


                                      No. 13-41007                                   FILED
                                                                                August 5, 2014
                                                                                Lyle W. Cayce
UNITED STATES OF AMERICA,                                                            Clerk

                                                 Plaintiff - Appellee
v.

ISRAEL NOE JUAREZ-VELAZQUEZ,

                                                 Defendant - Appellant




                    Appeal from the United States District Court
                         for the Southern District of Texas
                               USDC No. 1:13-CR-365


Before DAVIS, SMITH, and BENAVIDES, Circuit Judges.
PER CURIAM:*
           This is a direct criminal appeal from Appellant’s conviction for being a
removed alien found in the United States in violation of 8 U.S.C. § 1326(b).
Finding no plain error, we AFFIRM the sentence and REMAND to the district
court for reformation of the judgment to reflect the conviction and sentence
under 8 U.S.C. § 1326(b)(1).
       Israel Noe Juarez-Velazquez (“Juarez-Velazquez”) pleaded guilty to
being unlawfully found in the United States after deportation without a plea


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                   No. 13-41007
agreement. Id. § 1326(b)(2). The Presentence Report increased his offense
level by 12 levels based upon his previous Florida drug conviction constituting
a “felony drug trafficking offense” pursuant to U.S.S.G. § 2L1.2(b)(1)(B). The
total offense level was 17, and with a criminal history category of IV, the
recommended guidelines range was 37 to 46 months. Juarez-Velazquez did
not object to the 12-level increase or to the classification of his Florida
conviction as an “aggravated felony” for purposes of § 1326(b). The district
court imposed a sentence of 42 months of imprisonment. Juarez-Velazquez
now appeals his sentence.
      I.     Felony Drug Trafficking Offense under § 2L1.2(b)(1)(B)
      Juarez-Velazquez argues that his prior felony marijuana conviction in
Florida does not constitute a drug trafficking offense under § 2L1.1(b)(1)(B).
He argues that the Florida statute criminalizes administering a controlled
substance and that conduct does not qualify as a drug trafficking offense under
§ 2L1.1(b)(1)(B). As he concedes, because the issue is raised for the first time
on appeal, it must be reviewed for plain error. Under plain error review, this
court finds “plain error only if: (1) there was an error; (2) the error was clear
and obvious; and (3) the error affected the defendant’s substantial rights.”
United States v. Gracia–Cantu, 302 F.3d 308, 310 (5th Cir. 2002).                If a
defendant proves these three elements, this court has the “discretion to correct
the error only if it seriously affect[s] the fairness, integrity, or public reputation
of judicial proceedings.” Id. (alternation in original) (citation and internal
quotation marks omitted).
      Juarez-Velazquez was convicted pursuant to Fla. Stat. § 893.13(1)(a),
which provides that a “person may not sell, manufacture, or deliver, or possess




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                                       No. 13-41007
with intent to sell, manufacture, or deliver, a controlled substance.” 1 Section
2L1.2(b)(1)(B) provides that if a defendant has a prior “conviction for a felony
drug trafficking offense for which the sentence imposed was 13 months or less,
increase [the offense level] by 12 levels.”         The commentary to § 2L1.2 defines
a “drug trafficking offense” as “an offense under federal, state, or local law that
prohibits the manufacture, import, export, distribution, or dispensing of, or
offer to sell a controlled substance (or a counterfeit substance) or the possession
of a controlled substance (or a counterfeit substance) with intent to
manufacture, import, export, distribute, or dispense.” § 2L1.2 cmt. n.1(B)(iv).
       To determine whether a prior conviction qualifies as a drug trafficking
offense, this court employs the categorical approach set forth in Taylor v.
United States, 495 U.S. 575, 602 (1990), comparing the elements of the prior
offense, rather than the facts underlying the conviction, with the definition of
a “drug trafficking offense” in the commentary to § 2L1.2. United States v.
Reyes-Mendoza, 665 F.3d 165, 166–67 (5th Cir. 2011).                     If a statute has
disjunctive subsections, as it does here, this court “may look beyond the statute
to certain records made or used in adjudicating guilt to determine which
subpart of the statute formed the basis of the conviction.” United States v.
Castaneda, 740 F.3d 169, 172 (5th Cir. 2013) (internal quotation marks and
citation omitted); see also United States v. Sarmientos, 742 F.3d 624, 629 (5th
Cir. 2014) (stating that § 893.13 is divisible). In doing so, this court’s review is
“generally limited to the charging document, written plea agreement,
transcript of the plea colloquy, and any explicit factual findings by the trial
judge to which the defendant assented.” Castaneda, 740 F.3d at 172 (internal



       1 The criminal information for Juarez-Velasquez’s 2005 Florida offense, which tracks
the language of § 893.13(1)(a), states that he unlawfully and knowingly sold, manufactured,
or delivered or possessed with the intent to sell, manufacture or deliver 129 grams of cannabis
in violation of § 893.13(1)(a).
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quotation marks and citation omitted); Shepard v. United States, 544 U.S. 13,
16 (2005). “Where the record does not make clear the offender’s offense and
conviction, courts must ensure that the least culpable act that violates the
statute constitutes a drug-trafficking offense.” Reyes-Mendoza, 665 F.3d at
167.
        Juarez-Velazquez contends that his Florida offense cannot be narrowed
by Shepard-approved documents. 544 U.S. at 16. We need not determine
whether the available record contains Shepard-approved documents because
we conclude that, under the plain error standard, Juarez-Velazquez has not
shown that Florida’s definition of delivery of a controlled substance is plainly
or obviously broader than the definition of a drug trafficking offense under
§ 2L1.2.
        Very recently, this court rejected the same claim regarding an Illinois
drug trafficking statute. United States v. Ruiz-Sanchez, __ F. App’x __, 12-
40199, 2014 WL 2925157 (5th Cir. June 30, 2014) (per curiam). We concluded
that because Appellant failed to cite any Illinois case applying the criminal
statute to the conduct of administering the controlled substance, he had not
demonstrated plain error. Id. at *1; United States v. Villega-Mejia, 559 F.
App’x 387, 389 (5th Cir. 2014) (finding no plain error because the Appellant
had not cited a Washington case applying the drug statute to the conduct of
administering the controlled substance); see also United States v. Carrasco-
Tercero, 745 F.3d 192, 197-98 (5th Cir. 2014) (explaining that the offender must
point to a case in which a state court has applied the statute of conviction in
the special manner he hypothesizes) (preserved error case).
         Here, Juarez-Velazquez attempts to show plain error by citing State v.
Weeks, 335 So. 2d 274 (Fla. 1976), and State v. Cilento, 377 So. 2d 663 (Fla.
1979), both of which involve convictions under § 893.13(1)(a) for delivery of a
controlled substance. Neither case, however, involved a defendant accused of
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                                      No. 13-41007
“administering” a controlled substance. And so neither makes the error he
presses on appeal “plain” or “obvious.” 2
       The Ninth Circuit has held, on plain-error review, that the instant
Florida statute “is not broader than the definition of ‘drug trafficking’ in section
2L1.2 simply because it contains the word ‘deliver.’” United States v. Sanchez-
Flores, 357 F. App’x 833 (9th Cir. 2009) (unpublished). The Ninth Circuit’s
holding rejects Juarez-Velazquez’s argument. See Appellant’s brief at 14 (“[A]
comparison of the Florida definition of ‘deliver’ or ‘delivery’ compared with the
terms used in the Sentencing Guidelines shows that the Florida offense of
delivery of a controlled substance falls outside the generic meaning of the term
‘drug trafficking offense’ as used in USSG § 2L1.2(b)(1)(B).”). In view of the
Ninth Circuit’s rejection of this claim and because Juarez-Velazquez fails to
cite a case in which a Florida court has actually applied that statute to the
conduct of administering a controlled substance, we conclude he has failed to
show clear and obvious error. See United States v. Miller, 665 F.3d 114, 136
(5th Cir. 2011) (explaining that “[b]ecause our law is unsettled, and the law of
our sister circuits is not uniformly in the defendant’s favor, plain error is not
demonstrated”).
       II.    Aggravated Felony under 8 U.S.C. § 1326(b)(2)
       Juarez-Velazquez also contends that the district court plainly erred in
classifying his Florida conviction as an “aggravated felony” under 8 U.S.C.



       2  Juarez-Velazquez points to § 893.05(1), which provides that: “A practitioner, in
good faith and in the course of his professional practice only, may prescribe, administer,
dispense, mix or otherwise prepare a controlled substance, or he may cause the same to be
administered by a licensed nurse or an intern practitioner under his direction and
supervision only.” This statute “provides a necessary exception to the imposition of criminal
penalties for the conduct proscribed under Section 893.13.” Weeks, 335 So.2d at 275.
Nevertheless, it does not satisfy Juarez-Velazquez’s burden of proving plain error by citing a
case in which a Florida court has applied the drug statute to the conduct of administering a
controlled substance.
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                                No. 13-41007
§ 1326(b)(2). In the context of an immigration case, we have recently held that
a § 893.13(1)(a) offense—Juarez-Velazquez’s statute of conviction—is not an
“aggravated felony” under 8 U.S.C. § 1101(a)(43)(B) because it lacks the
requisite mental state. United States v. Sarmientos, 742 F.3d 624, 627–32 (5th
Cir. 2014). For purposes of applying the enhanced sentencing penalties of
§ 1326(b)(2), the term “aggravated felony” likewise has the meaning given that
term in 8 U.S.C. § 1101(a)(43). See United States v. Mondragon-Santiago, 564
F.3d 357, 367–69 (5th Cir. 2009) (analyzing definition of “aggravated felony”
in § 1101(a)(43) to determine whether the defendant was properly convicted
under § 1326(b)(2)). Thus, it was error to classify Juarez-Velazquez’s prior
conviction as an “aggravated felony” under § 1326(b)(2); instead, the conviction
should have been classified as a prior felony under § 1326(b)(1).
      Juarez-Velazquez’s reply brief makes clear that he is only seeking
reformation of the judgment—and not resentencing—based on this error. In
any event, he is not entitled to a remand for resentencing because he cannot
show that this error affected his sentence. See Mondragon–Santiago, 564 F.3d
at 369. Nevertheless, because Juarez-Velazquez’s illegal reentry offense was
a § 1326(b)(1) violation rather than a § 1326(b)(2) violation, we REMAND for
the sole purpose of reforming the judgment to reflect the proper statute of
conviction.   See 28 U.S.C. § 2106 (allowing modification of judgment); see
United States v. Ramos-Bonilla, 558 F. App’x. 440, 442 (5th Cir. 2014)
(reforming judgment to indicate 8 U.S.C. § 1326(b)(1) even though appellant
could not show plain error). In all other respects, the judgment is AFFIRMED.




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