                                                                  [DO NOT PUBLISH]

                        IN THE UNITED STATES COURT OF APPEALS

                               FOR THE ELEVENTH CIRCUIT           FILED
                                ________________________ U.S. COURT OF APPEALS
                                                                 ELEVENTH CIRCUIT
                                       No. 10-13709                 AUG 17, 2011
                                                                     JOHN LEY
                                   Non-Argument Calendar               CLERK
                                 ________________________

                          D.C. Docket No. 8:10-cr-00015-VMC-EAJ-1

UNITED STATES OF AMERICA,

lllllllllllllllllllll                                                    Plaintiff-Appellee,

                                             versus

CARLOS ALBERTO MARTINEZ-VASQUEZ,

lllllllllllllllllllll                                             Defendant-Appellant.

                                ________________________

                          Appeal from the United States District Court
                              for the Middle District of Florida
                                ________________________

                                      (August 17, 2011)

Before MARCUS, MARTIN and ANDERSON, Circuit Judges.

PER CURIAM:

         Carlos Martinez-Vasquez appeals his convictions and 48-month total sentence

for illegal reentry after deportation for a felony, in violation of 8 U.S.C. §§ 1326(a)
& (b)(2), and illegal entry, in violation of 8 U.S.C. §§ 1325(a)(1), 1329. On appeal,

he argues that: (1) the district court erred by imposing a 16-level enhancement based

on his California drug conviction when the court incorrectly interpreted the inclusive

language of the charging document to mean that he was convicted of every alleged

act; and (2) his convictions under both § 1325(a) and § 1326(a) violate the double

jeopardy clause of the Fifth Amendment because § 1325(a) does not require proof of

an element that § 1326(a) does not also require. After careful review, we affirm.

      We review de novo whether a prior conviction constitutes a drug trafficking

offense for sentencing guidelines enhancement purposes. United States v.

Aguilar-Ortiz, 450 F.3d 1271, 1272 (11th Cir. 2006). We review de novo properly

preserved double jeopardy claims, but if the defendant did not raise the issue before

the district court, then we review the claim only for plain error. United States v.

Bobb, 577 F.3d 1366, 1371 (11th Cir. 2009). Under plain error, we affirm the district

court unless: (1) there was an error; (2) the error was plain; (3) the error affected the

defendant’s substantial rights; and (4) the error seriously affects the fairness,

integrity, or public reputation of judicial proceedings. Id. “An error is plain if it is

obvious and clear under current law.” United States v. Eckhardt, 466 F.3d 938, 948

(11th Cir. 2006).




                                           2
      First, we are unpersuaded by Martinez-Vasquez’s argument that the district

court erred by imposing a 16-level enhancement based on his California drug

conviction.    Sentencing Guideline § 2L1.2(b)(1)(A)(i) provides a 16-level

enhancement if the defendant was deported after a conviction for a felony “drug

trafficking offense” and the sentence imposed was more than 13 months. The

Application Notes to § 2L1.2 state that drug trafficking is “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.” U.S.S.G. § 2L1.2, cmt.

n.1(B)(iv).

      California Health & Safety Code § 11352(a) states in pertinent part that:

      every person who transports, imports into this state, sells, furnishes,
      administers, or gives away, or offers to transport, import into this state,
      sell, furnish, administer, or give away, or attempts to import into this
      state or transport [] any controlled substance . . . shall be punished by
      imprisonment in the state prison for three, four, or five years.

      We generally use the categorical approach to determine “whether a prior

conviction is a qualifying offense for enhancement purposes.” Aguilar-Ortiz, 450

F.3d at 1273. This approach requires a court to look no farther than the fact of

conviction and the statutory offense to see if it is the equivalent to a relevant offense

                                           3
level enhancing definition in the Sentencing Guidelines. United States v. Palomino

Garcia, 606 F.3d 1317, 1328 (11th Cir. 2010).

      When a violation of a state statute is broader than the offense as described in

the Guidelines, so that a state conviction may or may not qualify for an offense level

enhancement, we employ the modified categorical approach. Id. This approach

allows a court to consider certain judicial documents to ascertain the factual

circumstances of a defendant’s prior conviction, and determine whether it warrants

an enhancement under the Guidelines. See id. The court may look to “the terms of

the charging document, the terms of a plea agreement or transcript of colloquy[,] . .

. or to some comparable judicial record of this information.” Shepard v. United

States, 544 U.S. 13, 26 (2005). However, a court is only limited to these documents

when determining the character of a prior conviction, not whether there was a prior

conviction. See United States v. Cantellano, 430 F.3d 1142, 1147 (11th Cir. 2005).

      Under California law, “[a]n abstract of judgment is not the judgment of

conviction; it does not control if different from the trial court’s oral judgment and

may not add to or modify the judgment it purports to digest or summarize.” People

v. Mitchell, 26 Cal.4th 181, 185 (Cal. 2001). However, when a court sentences a

defendant to imprisonment, a certified abstract of the judgment is all that is required

for an officer to execute the judgment of the court. Id. “[T]he certified abstract of the

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judgment constitutes the commitment. . . . It is thus the order sending the defendant

to prison and the process and authority for carrying the judgment and sentence into

effect.” Id. (quotations omitted).

       While we are not bound by a state court’s interpretation of a similar statute

when interpreting federal law, when we are determining whether a state conviction

qualifies as a predicate drug trafficking offense for enhancement purposes, we are

bound by a state’s supreme court precedent when interpreting state law, including its

determination of the elements of the statute at issue. Johnson v. United States, 130

S.Ct. 1265, 1269 (2010). If the state supreme court has not definitively determined

a point of state law, we are bound to adhere to decisions of the state’s intermediate

courts absent some indication that the state supreme court would hold otherwise.

Sculptchair, Inc. v. Century Arts, Ltd., 94 F.3d 623, 627 (11th Cir. 1996).

       When a statute allows several alternative ways in which an offense can be

committed, “the indictment may allege the several ways in the conjunctive, and a

conviction thereon will stand if proof of one or more of the means of commission is

sufficient.” Fields v. United States, 408 F.2d 885, 887 (5th Cir. 1969).1 Under

California law, a plea “is deemed to constitute a judicial admission of every element


       1
        In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), we
adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to
October 1, 1981.

                                                5
of the offense charged.” People v. Chadd, 28 Cal.3d 739, 748 (Cal. 1981). “[I]t

serves as a stipulation that the People need introduce no proof whatever to support

the accusation: the plea ipso facto supplies both evidence and verdict.” Id. A plea

further admits “all allegations and factors comprising the charge contained in the

pleading.” People v. Palacios, 65 Cal.Rptr.2d 318, 321 (Cal. App. 1st Dist. 1997).

      In this case, the district court did not err in imposing a 16-level enhancement

for a prior conviction of a drug trafficking offense based on Martinez-Vasquez’s

California drug conviction. The court properly reviewed the charging document for

the prior conviction, see Shepard, 544 U.S. at 26, which charged Martinez-Vasquez,

using conjunctive language, with having committed any and all of the alleged acts,

including the sale, import, and furnishing of heroin and cocaine. A conviction for the

sale, import, and furnishing of heroin and cocaine constitutes a drug trafficking

offense for sentencing enhancement purposes. U.S.S.G. § 2L1.2, cmt. n.1(B)(iv).

Since Martinez-Vasquez pled guilty to the charge, he admitted committing all of the

alleged acts and was convicted for any and all of those acts. See Chadd, 28 Cal.3d

at 748; Palacios, 65 Cal.Rptr.2d at 321. Therefore, Martinez-Vasquez’s conviction

was for acts that constituted drug trafficking offenses, and the district court did not

err in imposing a 16-level enhancement.




                                          6
      As for Martinez-Vasquez’s argument that there is an insufficient basis for

concluding that he was convicted of every prong of the statute because indictments

regularly replace the disjunctive language of a statute with conjunctive language in

the charge, we are unpersuaded. Although a charge may often use conjunctive

language and a defendant can be convicted under any one of the alleged acts, under

California law a plea amounts to an admittance and conviction on all of the elements

and acts contained in the charge. Martinez-Vasquez presents no evidence or case law

to rebut this conclusion.

      Furthermore, his argument that the district court improperly relied on the

abstract of judgment also fails. The abstract of judgment is a judicial record that

summarizes the judgment of conviction, is the order sending the defendant to prison,

and has the authority for carrying the judgment and sentence into effect. See

Mitchell, 26 Cal.4th at 185. Since the abstract of judgment presents the oral judgment

of the court and carries with it the authority to implement the judgment, it is a

comparable judicial record to those listed in Shepard, and the district court did not err

by looking to it. Moreover, the district court only relied on the abstract of judgment

for determining that Martinez-Vasquez was convicted of the prior offense, and relied

on the charging document to determine the facts of that offense. See Cantellano, 430

F.3d at 1147. Since the district court properly concluded that Martinez-Vasquez pled

                                           7
guilty to all of the acts alleged in the California offense’s charging document, some

of which constituted drug trafficking offenses, and it did not look at improper

documents in coming to that decision, the district court did not err in imposing a

16-level enhancement for a prior drug trafficking offense.

      We are also unpersuaded by Martinez-Vasquez’s claim -- reviewed for plain

error since he did not raise it below -- that his convictions under both § 1325(a) and

§ 1326(a) violate the double jeopardy clause of the Fifth Amendment. The Fifth

Amendment’s double jeopardy clause guarantees that no person shall “be subject for

the same offence to be twice put in jeopardy of life or limb.” U.S. Const. amend. V.

This guarantee prohibits, among other things, multiple punishments for the same

offense. Bobb, 577 F.3d at 1371. Congress has the power to authorize multiple

punishments arising out of a single act or transaction. Id. However, “where two

statutory provisions proscribe the same offense and there is no clear indication that

the legislature intended multiple punishments for the offense, the Double Jeopardy

Clause’s prohibition against multiple punishments protects a defendant from being

convicted under both provisions.” Id. at 1371-72.

      The test for determining whether two statutory provisions prohibit the same

offense “is whether each provision requires proof of a fact which the other does not.”

Blockburger v. United States, 284 U.S. 299, 304 (1932). Our analysis focuses on the

                                          8
proof necessary to establish the statutory elements of each offense, not the actual

evidence presented at trial. Bobb, 577 F.3d at 1372. “[C]omparing criminal statutes

to determine whether one set of elements is a subset of another requires a strictly

textual comparison.” Id. at 1373. This requires looking to the statutory elements, not

the language used in the indictment. Id.

      Under 8 U.S.C. § 1325(a), it is illegal when an alien:

      (1) enters or attempts to enter the United States at any time or place
      other than as designated by immigration officers, or (2) eludes
      examination or inspection by immigration officers, or (3) attempts to
      enter or obtains entry to the United States by a willfully false or
      misleading representation or the willful concealment of a material fact.

Under 8 U.S.C. § 1326(a), it is illegal when an alien:

      (1) has been denied admission, excluded, deported, or removed or has
      departed the United States while an order of exclusion, deportation, or
      removal is outstanding, and thereafter

      (2) enters, attempts to enter, or is at any time found in, the United States,
      unless (A) prior to his reembarkation at a place outside the United States
      or his application for admission from foreign contiguous territory, the
      Attorney General has expressly consented to such alien’s reapplying for
      admission; or (B) with respect to an alien previously denied admission
      and removed, unless such alien shall establish that he was not required
      to obtain such advance consent under this chapter or any prior act.

      Here, Martinez-Vasquez has failed to show that there was any error, much less

plain error, in his convictions under 8 U.S.C. §§ 1325(a) and 1326(a) based on the

assertion that they violated the double jeopardy clause of the Fifth Amendment.

                                           9
While Section 1326(a) requires a previous removal from the United States, § 1325(a)

does not; and while Section 1325(a) requires that the entry into the United States be

done in one of the specifically proscribed ways, that is not required under § 1326(a).

All that is required under § 1326(a) is that the alien entered or was found in the

United States, irrespective of how the alien entered. Although the manner in which

an alien violates § 1326(a) may also violate § 1325(a), the test to determine if there

is a double jeopardy clause violation requires analyzing the proof necessary to

establish the statutory elements of each offense, not the actual evidence presented.

Bobb, 577 F.3d at 1372. Thus, since § 1326(a) and § 1325(a) require different proof

to establish their statutory elements, they do not prohibit the same offense, and there

is no double jeopardy violation for his convictions under 8 U.S.C. § 1325(a) and

1326(a). See Blockburger, 284 U.S. at 304.

      AFFIRMED.




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