                                                          United States Court of Appeals
                                                                   Fifth Circuit
                                                                   F I L E D
                   UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT                       May 8, 2006

                                                              Charles R. Fulbruge III
                                                                      Clerk
                             No. 05-20461
                           Summary Calendar



     UNITED STATES OF AMERICA,
                                        Plaintiff - Appellee,


                                   v.


     JOSE GUADALUPE GONZALEZ-PATINO, also known as Jose G
Gonzalez,

                                        Defendant - Appellant.




            Appeal from the United States District Court
                  for the Southern District of Texas
                            4:04-CR-386-ALL



Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:*

     Jose   Guadalupe   Gonzalez-Patino    pleaded   guilty   to    illegal

reentry   and   subsequently   received   a   sixteen-level    sentencing

enhancement based on a previous conviction for drug trafficking.

For the first time on appeal, Gonzalez-Patino argues that (1) the

district court erred by solely relying on his presentencing report


     *
          Pursuant to 5TH CIR. R. 47.5, this 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that this opinion should not be published and is not precedent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.
(“PSR”) in      determining      that    his       prior   conviction     was    a    drug

trafficking offense; (2) the use of his prior conviction violated

the Double Jeopardy Clause and the Eighth Amendment; and (3) he had

ineffective assistance of counsel.

     For the reasons explained below, the sentence is AFFIRMED.



                 I.     FACTUAL AND PROCEDURAL BACKGROUND

     Gonzalez-Patino          pleaded    guilty       to   illegal    reentry        after

deportation     under     8    U.S.C.     §       1326(a)(1)    (2000).         The    PSR

recommended a sixteen-level enhancement for a prior conviction for

“a drug trafficking offense for which the sentence imposed exceeded

thirteen   months.”           U.S.S.G.    §       2L1.2(b)(1)(A)(i)     (2004).         At

sentencing, the court relied on the PSR’s description of a 1991

offense1   in    determining       that       the     offense   constituted          “drug

trafficking.”      The PSR did not identify the Texas statute under

which Gonzalez-Patino was convicted.                   It is undisputed that the

statute was TEXAS HEALTH & SAFETY CODE § 481.112(a) (Vernon 1989).2

     At sentencing, Gonzalez-Patino did not object to the court’s

reliance on the PSR.             The court sentenced him to fifty-seven

     1
     The PSR described police surveillance of Gonzalez-Patino in
which they observed “the defendant who appeared to be conducting
transactions in the parking lot of [a] lounge.” It also
described finding on or near the defendant “two bags containing
cocaine,” “$2,772,” “[a]n additional $160.95,” and “a triple beam
scale.”
     2
     As pointed out by the Government, Gonzalez-Patino
mistakenly cites a more recent version of the statute. This does
not affect our analysis.

                                              2
months’ imprisonment.       Gonzalez-Patino appealed.



                        II.    STANDARD OF REVIEW

     Gonzales-Patino        concedes          that   plain     error   review     is

appropriate, given that he raises these issues for the first time

on appeal.   Plain error exists when: “(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. Villegas, 404

F.3d 355, 358 (5th Cir. 2005).            Even if these conditions are met,

an appellate court may exercise its discretion to notice the error

only if “the error seriously affects the fairness, integrity, or

public reputation of judicial proceedings.”                  Id. at 358–59.



                              III.     DISCUSSION

A.   The Court’s Reliance on the PSR

     A   district   court     is   “not       permitted   to   rely    on   a   PSR’s

characterization of a defendant’s prior offense in order to make a

determination of whether it was a ‘drug trafficking offense.’”

United States v. Garza-Lopez, 410 F.3d 268, 274 (5th Cir. 2005).

This follows the categorical approach outlined in Taylor v. United

States, 495 U.S. 575, 602 (1990), that requires sentencing courts

to determine the nature of a prior conviction by examining the

statute under which the conviction was attained. For statutes that

contain both conduct that qualifies for an enhancement and conduct


                                          3
that does not, courts can also examine charging instruments or jury

instructions.    Id.   The district court erred by not reviewing the

necessary documents.    This error is plain.

     Gonzalez-Patino, however, fails to satisfy the third prong of

plain error review.     Gonzalez-Patino bears the burden of proving

that the error affected his substantial rights.     United States v.

Olano, 507 U.S. 725, 734 (1993).   To meet that burden, he must show

a reasonable probability that, but for the error, he would have

received a lesser sentence.     Villegas, 404 F.3d at 364.

     Gonzalez-Patino fails to argue that his prior conviction was

not for drug trafficking. While the statute at issue might include

some conduct that is not “drug trafficking,”3 Gonzalez-Patino does

not argue that his conviction was for that specific conduct.     He

does not contend that were the district court to review allowable

evidence, such as the charging instrument, that this evidence would

show that he had not committed a “drug trafficking” offense.

Instead, Gonzalez-Patino simply shows that without the sixteen-

level enhancement he would have received a shorter sentence.    This

is not enough.    United States v. Ochoa-Cruz, __ F.3d __, 2006 WL

548421, at *2 (5th Cir. Mar. 7, 2006).     Without at least arguing



     3
     Gonzalez-Patino argues that the statute at issue includes
some conduct that would not qualify as “drug trafficking” under
the Sentencing Guidelines. Specifically, he contends that the
statute covers “delivery” of a controlled substance, which
includes merely “offering to sell” the substance. We assume
without deciding that he is correct.

                                   4
that   the   drug     trafficking   enhancement       was    ultimately     wrong,

Gonzalez-Patino cannot show that he would have received a lesser

sentence.       Id.

       Gonzalez-Patino has not shown that the error affected his

substantial rights.          Therefore, his argument fails under plain

error review.

B.    The Constitutionality of the Enhancement

       Gonzalez-Patino argues, also for the first time on appeal,

that the sixteen-level enhancement violated the Double Jeopardy

Clause by unconstitutionally punishing him twice for his 1991

offense. See U.S. CONST. amend V.            He contends that a court already

sentenced him to ten years’ imprisonment for the offense, and that

the enhancement punishes him again for the same conduct.                    He also

argues, again for the first time on appeal, that the enhancement

violates the Eighth Amendment.               See U.S. CONST. amend VIII.         He

contends that the enhancement, when considered with the time he

already served for the 1991 offense, creates a punishment that is

grossly disproportionate to his conduct.              See Ingraham v. Wright,

430 U.S. 651, 667 (1977).

       Gonzalez-Patino has not established error. The use of a prior

conviction      for   enhancement   purposes        does    not   violate   double

jeopardy.    Sudds v. Maggio, 696 F.2d 415, 417 (5th Cir. 1983).                 In

addition, Gonzalez-Patino’s Eighth Amendment argument lacks merit.

Our    Eighth    Amendment    analysis       is   limited   to    the   punishment


                                         5
surrounding the illegal reentry.           We cannot, as Gonzalez-Patino

suggests, consider the current punishment in conjunction with the

punishment       for   the   1991   offense.     Cf.   United   States   v.

Cardenas-Alvarez, 987 F.2d 1129, 1134 (5th Cir. 1993) (“[A]ppellate

review for Eighth Amendment challenges is narrow.”).              Gonzalez-

Patino’s     fifty-seven       months’      sentence   is   not     grossly

disproportionate to his conduct.             Therefore, Gonzalez-Patino’s

constitutional arguments fail.

C.   Ineffective Assistance of Counsel

     Gonzalez-Patino also contends that the sentence cannot stand

because he received ineffective assistance of counsel.            This claim

is not ripe for appellate review.          See United States v. Sidhu, 130

F.3d 644, 650 (5th Cir. 1997). “Generally, a claim for ineffective

assistance of counsel is not reviewed on direct appeal when, as

here, there has been no development of the issue in the district

court.”    Id.    This Court will consider such claims in “rare cases”

where the record is fully developed.         United States v. Cornett, 195

F.3d 776, 781 n.2 (5th Cir. 1999).          Contrary to Gonzalez-Patino’s

assertions, however, this is not one of those rare cases.           There is

no record regarding counsel’s alleged ineffectiveness.

     AFFIRMED.




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