     Case: 11-40047     Document: 00511617606         Page: 1     Date Filed: 09/29/2011




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

                                                                            FILED
                                                                        September 29, 2011
                                     No. 11-40047
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

LEONARDO JIMENEZ-TOVAR,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                            USDC No. 1:09-CR-1339-1


Before DAVIS, BENAVIDES, and STEWART, Circuit Judges.
PER CURIAM:*
        Leonardo Jimenez-Tovar (Jimenez) appeals from his conviction of being
found illegally in the United States following removal. He contends that the
documents used to prove his 1983 California conviction of sale of a controlled
substance did not prove that he committed a drug trafficking offense for
purposes of the 12-level offense level adjustment of U.S.S.G. § 2L1.2(b)(1)(B). He
asserts that California abstracts of judgment are unreliable as a matter of law;
that the charging instrument is insufficient to prove a drug trafficking offense

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 11-40047

because it may have merely tracked the language of section 11352; and that the
entry of plea document is insufficient because it contains check-off boxes, is not
a transcript, and bears no judicial signature.
      We review for plain error the issue whether Jimenez committed a drug
trafficking offense, as Jimenez did not raise that issue in the district court. See
United States v. Whitelaw, 580 F.3d 256, 259 (5th Cir. 2009). To the extent that
Jimenez challenged the adequacy of the documents to prove his conviction, his
challenge on appeal to the documents should be reviewed de novo as to the
district court’s legal conclusions and for clear error as to its factual findings. See
United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2009).
      We employ the categorical approach set forth in Taylor v. United States,
495 U.S. 575, 602 (1990), to determine whether a prior conviction qualifies as a
drug-trafficking offense under § 2L1.2. United States v. Rodriguez, 523 F.3d 519,
524 (5th Cir. 2008); United States v. Garza-Lopez, 410 F.3d 268, 273 (5th Cir.
2005). In so doing, we look to the elements of the prior offense, rather than to
the facts underlying the conviction. Garza-Lopez, 410 F.3d at 273. However,
when a statute includes conduct that both does and does not constitute a drug
trafficking offense, we may look to records of the conviction to determine
whether the defendant’s conduct fell under a statutory section constituting a
drug trafficking offense. United States v. Gutierrez-Ramirez, 405 F.3d 352, 356,
359 (5th Cir. 2005). “Such records include the charging paper, a written plea
agreement, the guilty-plea transcript, factual findings by the trial judge to which
the defendant assented, and jury instructions.” Rodriguez, 523 F.3d at 524.
      The challenged documents here were not necessary to determine how
Jimenez violated section 11352. The abstract and entry of plea document
demonstrate that Jimenez’s guilty plea was responsive to the two counts of the
complaint alleging that he sold heroin. A clerical document like an abstract may




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                                  No. 11-40047

be used to prove the existence of a prior conviction. See United States v. Moreno-
Florean, 542 F.3d 445, 449-50 & n.1 (5th Cir. 2008); United States v.
Neri-Hernandes, 504 F.3d 587, 590-92 (5th Cir.2007). Here, the complaint
charging Jimenez with the sale of heroin indicated how he violated section
11352; the challenged documents merely indicated that his guilty plea was
responsive to the counts of the complaint alleging actual sale. The actual sale
of heroin falls within the definition of a drug trafficking offense. See § 2L1.2,
comment. (n.1(B)(iv)).
      AFFIRMED.




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