     Case: 11-40642   Document: 00512159511     Page: 1   Date Filed: 02/28/2013




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

                                                                   FILED
                                                               February 28, 2013
                                No. 11-40642
                              Summary Calendar                    Lyle W. Cayce
                                                                       Clerk



UNITED STATES OF AMERICA,

                                           Plaintiff - Appellee

v.

DIEGO DUQUE-HERNANDEZ,

                                           Defendant - Appellant


                 Appeal from the United States District Court
                      for the Southern District of Texas


Before SMITH, PRADO, and HIGGINSON, Circuit Judges.
HIGGINSON, Circuit Judge:
      Diego Duque-Hernandez pleaded guilty to illegal reentry after deportation,
in violation of 8 U.S.C. § 1326(a) and (b), and was sentenced to 51 months of
imprisonment—the low end of his Guidelines range—and three years of
supervised release. He appeals his sentence, arguing that the district court
erred by applying a twelve-level adjustment to his base offense level for his
previous commission of a drug trafficking offense.
      Under § 2L1.2(b)(1)(B) of the Sentencing Guidelines, a twelve-level
adjustment to a defendant’s base offense level is applied if the defendant was
previously convicted of “a felony drug trafficking offense for which the sentence
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                                    No. 11-40642

imposed was 13 months or less.” A drug trafficking offense is defined as “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. Prior convictions involving the attempt to
commit such offenses are included within this definition. § 2L1.2 cmt.
      Duque-Hernandez was previously convicted of § 58-37-8(1)(a)(ii) of the
Utah Criminal Code, which makes it a felony “to knowingly and intentionally:
. . . distribute a controlled or counterfeit substance, or to agree, consent, offer, or
arrange to distribute a controlled or counterfeit substance.” The probable cause
statement on the second page of the charging document, which was sworn to by
a law enforcement officer, indicates that “the defendant offered to sell [an
undercover officer] a substance which was represented to be cocaine.” Noting
that the Guidelines were amended in 2009 to include offers of sale as drug
trafficking offenses under § 2L1.2(b)(1)(B), the presentence report recommended
applying the adjustment on that basis, and the district court adjusted upward
Duque-Hernandez’s base offense level accordingly.
      Because Duque-Hernandez did not object to the application of the
adjustment, our review is for plain error. United States v. Mondragon-Santiago,
564 F.3d 357 (5th Cir. 2009). To demonstrate plain error, he must show a
forfeited error that is clear or obvious and that affects his substantial rights. See
Puckett v. United States, 556 U.S. 129, 135 (2009). If he makes such a showing,
we have the discretion to correct the error but only if it seriously affects the
fairness, integrity, or public reputation of judicial proceedings. Id.; see also
United States v. Escalante-Reyes, 689 F.3d 415, 425 (5th Cir. 2012) (en banc)
(declining “to adopt a blanket rule that once prejudice is found under the [third
plain error prong], the error invariably requires correction”). The Supreme

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                                      No. 11-40642

Court recently reiterated the importance of this independent fourth assessment
we must make before correcting an error urged on appeal for the first time. See
Henderson v. United States, 568 U.S. ___, 2013 WL 610203, at *9 (Feb. 20, 2013)
(emphasizing that the plain error rule “contains other screening criteria” in
addition to the “error” and “plainness” requirements).
       The objection Duque-Hernandez failed to raise at a timely point concerns
the district court’s adjustment of his base offense level, pursuant to §
2L1.2(b)(1)(B), on the basis of his previous conviction under § 58-37-8(1)(a)(ii) of
the Utah Criminal Code.             He contends that the statute of conviction
encompasses conduct that falls outside the definition of a “drug trafficking
offense” under § 2L1.2(b)(1)(B), and suggests that the probable cause statement
attached to his information is not a Shepard-approved document and should not
have been relied upon to support the application of the adjustment.
       Concluding that the sentencing error, if any, does not seriously affect the
fairness, integrity, or public reputation of judicial proceedings, we decline to
exercise our discretion to correct it. See United States v. Ellis, 564 F.3d 370,
378–79 (5th Cir. 2009) (“[E]ven if an increase in a sentence [can] be seen as
inevitably ‘substantial’ in one sense it does not inevitably affect the fairness,
integrity, or public reputation of judicial process and proceedings.”).                 Our
conclusion rests on three considerations.
       First, although we take no position on the propriety of using a probable
cause statement attached to a charging document to ascertain whether a prior
state conviction qualifies as a “drug trafficking offense” within the meaning of
§ 2L1.2(b)(1)(B),1 we perceive no error in reviewing this statement to assess



       1
         The Fourth Circuit has held that affidavits of probable cause that are a part of the
charging papers, or that are expressly incorporated into the charging papers, may be
considered in determining the appropriateness of sentencing enhancements. See United States
v. Kirksey, 138 F.3d 120, 126 (4th Cir. 1998).

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                                  No. 11-40642

whether the application of the drug trafficking adjustment seriously affected the
fairness, integrity, or public reputation of the proceedings, cf. United States v.
Trejo, 610 F.3d 308, 313 (5th Cir. 2010) (“In assessing factual sufficiency under
the plain error standard, we may look beyond those facts admitted by the
defendant during the plea colloquy and scan the entire record for facts
supporting his conviction.”). In this instance, reference to the probable cause
statement attached to the information to which Duque-Hernandez pleaded guilty
indicates that he offered to sell cocaine to an undercover officer, a fact that, if
proved or admitted, would have triggered the drug trafficking adjustment.
      Second, we point out that Duque-Hernandez and his counsel were well-
positioned to object to the drug trafficking adjustment, having previously raised
the same argument on appeal to contest the sentence imposed for his prior
illegal reentry conviction. See United States v. Duque-Hernandez, 227 F. App’x
326 (5th Cir. 2007). Yet counsel for Duque-Hernandez broadly stated, “We agree
with the scoring”; or, in a light most favorable, he neglected to interpose the very
objection he had asserted previously.
      Finally, we note that Duque-Hernandez’s sentence of 51 months of
imprisonment has strong foundation. As his three prior federal illegal reentry
convictions demonstrate, Duque-Hernandez has persistently disregarded the
immigration laws of the United States. He has used aliases to evade detection
and, once here, has violated the country’s drug laws. He has previously been
convicted of selling cocaine to an undercover officer, and, on this occasion, was
captured attempting to enter the country with duffel bags full of illegal narcotics
on behalf of a Mexican cartel. Among other crimes, Duque-Hernandez has also
been convicted of domestic violence and carrying a concealed firearm.
      The judgment of sentence is AFFIRMED.




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