     Case: 16-50195      Document: 00514382881         Page: 1    Date Filed: 03/12/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 16-50195
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                  Summary Calendar                              FILED
                                                                          March 12, 2018
                                                                           Lyle W. Cayce
UNITED STATES OF AMERICA,                                                       Clerk

                                                 Plaintiff-Appellee

v.

LINO CABRERA-TORRES,

                                                 Defendant-Appellant


                  Appeals from the United States District Court
                        for the Western District of Texas
                            USDC No. 2:15-CR-860-1


Before HIGGINBOTHAM, JONES, and SMITH, Circuit Judges.
PER CURIAM: *
       Lino Cabrera-Torres appeals his 41-month, within-guidelines sentence
for illegal reentry. Specifically, he challenges the district court’s assessment
of a 16-level “drug trafficking” enhancement, under former U.S.S.G.
§ 2L1.2(b)(1)(A)(i), based on his prior Minnesota conviction for selling
methamphetamine. See MINN. STAT. ANN. § 152.021(1)(2). Because Cabrera-
Torres did not object to the district court’s guidelines calculation, we review


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 16-50195

this issue for plain error. See Puckett v. United States, 556 U.S. 129, 135
(2009).
      To qualify as an enhanceable prior “drug trafficking” conviction under
former § 2L1.2, the statutory elements of the relevant Minnesota drug sale
offense must be congruent with or narrower than those of the “generic” crime
of drug trafficking, which prohibits, relevantly, “the manufacture, import,
export, distribution, or dispensing of, or offer to sell a controlled substance.”
§ 2L1.2, comment. (n.1(B)(iv)) (2015); see United States v. Martinez-Lugo, 782
F.3d 198, 203 (5th Cir. 2015). Cabrera-Torres contends that Minnesota’s drug
sale statute punishes a broader swath of conduct than “generic” drug
trafficking because it defines “sell” to include delivering or offering to deliver a
controlled substance for no remuneration.
      We have previously rejected such an argument. See Martinez-Lugo, 782
F.3d at 201-05 (rejecting contention that Georgia’s drug sale statute is
overbroad because it criminalizes an intent to distribute drugs for no
remuneration). In the wake of Martinez-Lugo, we have repeatedly upheld
§ 2L1.2(b)(1) “drug trafficking” enhancements based on state statutes that
criminalize nonremunerative drug transactions. See, e.g., United States v.
Ramirez-Bertran, 611 F. App’x 838, 839 (5th Cir. 2015); United States v.
Torres-Rodriguez, 606 F. App’x 276, 277 (5th Cir. 2015); United States v.
Pesina-Arano, 650 F. App’x 185, 187 (5th Cir. 2016). Although these cases are
unpublished, they are persuasive authority for affirming the judgment in this
case. See Ballard v. Burton, 444 F.3d 391, 401 & n.7 (5th Cir. 2006) (citing 5TH
CIR. R. 47.5.4).
      Given the above, Cabrera-Torres cannot show that, in applying former
§ 2L1.2 based on his Minnesota drug sale conviction, the district court clearly
or obviously erred. See Puckett, 556 U.S. at 135; Henderson v. United States,



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                                No. 16-50195

586 U.S. 266, 273-77 (2013) (holding that error must be clear or obvious as of
the time of appellate review). Accordingly, the judgment of the district court
is AFFIRMED.




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