     Case: 13-40491      Document: 00512820587         Page: 1    Date Filed: 10/30/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 13-40491                       United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
UNITED STATES OF AMERICA,                                                October 30, 2014
                                                                           Lyle W. Cayce
              Plaintiff - Appellee                                              Clerk

v.

DARLIN RODRIGUEZ-HERRERA,

              Defendant - Appellant



                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 1:12-CR-1111


Before KING, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
       Defendant-Appellant Darlin Rodriguez-Herrera was convicted for being
illegally present in the United States after deportation following a conviction
for an aggravated felony. On appeal, he challenges the 16-level increase in his
Sentencing Guidelines offender level under U.S.S.G. § 2L1.2(b)(1)(A) based on
a prior conviction for a “drug trafficking offense.” We AFFIRM.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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              FACTUAL AND PROCEDURAL BACKGROUND
      Rodriguez-Herrera pled guilty to being an alien unlawfully present in
the United States after deportation following a conviction for an aggravated
felony, in violation of 8 U.S.C. § 1326(a) and (b). The presentence investigation
report (“PSR”) assigned him a total offense level of 21, which included a 16-
level increase under U.S.S.G. § 2L1.2(b)(1)(A) for having a prior conviction for
“a drug trafficking offense,” namely, a controlled substance conviction in North
Carolina state court.      At sentencing the Government introduced a North
Carolina criminal bill of information and judgment.              The North Carolina
Superior Court judgment lists the “Offense Description” as “conspiracy to sell
and deliver cocaine” in violation of North Carolina General Statute § 90-95. 1
Rodriguez-Herrera did not object to this 16-level increase at sentencing.
      The PSR assigned Rodriguez-Herrera a criminal history category of III,
resulting in a Sentencing Guidelines imprisonment range of 46 to 57 months.
The district court sentenced him to 48 months of imprisonment. He filed a
timely notice of appeal, and he now challenges the 16-level enhancement based
on U.S.S.G. § 2L1.2(b)(1)(A).
                            STANDARD OF REVIEW
      Where, as here, a criminal defendant fails to object at sentencing to a
Guidelines offense level enhancement, we review its application for plain error.
United States v. Gonzalez-Terrazas, 529 F.3d 293, 296 (5th Cir. 2008). This
standard of review is compelled by Federal Rule of Criminal Procedure 52(b),
which provides that “[a] plain error that affects substantial rights may be
considered even though it was not brought to the court’s attention.” Henderson
v. United States, 133 S.Ct. 1121, 1124-25 (2013) (quoting Fed. R. Crim. P.



      1 The North Carolina judgment listed the defendant’s name as Norvin Alberto, which
the Government contends is Rodriguez-Herrera’s alias. He does not dispute this contention.
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52(b)). “Plain error occurs when: (1) there was an error; (2) the error was clear
and obvious; and (3) the error affected the defendant’s substantial rights.”
Gonzalez-Terrazas, 529 F.3d at 296 (internal quotation marks omitted). “If
each of these conditions is satisfied, we may exercise our discretion to correct
the error only if the error seriously affects the fairness, integrity, or public
reputation of judicial proceedings.” Id. (internal quotation marks omitted).
The question of whether an error is “plain” is assessed at the time of appellate
review. Henderson, 133 S.Ct. at 1124-25. “[L]ower court decisions that are
questionable but not plainly wrong (at time of trial or at time of appeal)” cannot
be corrected on plain error review. Id. at 1130.
                                    DISCUSSION
       Rodriguez-Herrera argues that his North Carolina controlled substances
conviction was not for a “drug trafficking offense” under U.S.S.G.
§ 2L1.2(b)(1)(A), so the 16-level enhancement does not apply. 2 For purposes of
U.S.S.G. § 2L1.2(b)(1)(A),
      “Drug trafficking offense” means 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.
Id. cmt. n.1(B)(iv). This definition also includes “the offense[ ] of aiding and
abetting, conspiring, and attempting, to commit” a drug trafficking offense. Id.
cmt. n.5.
      To determine whether a prior conviction qualifies for a sentencing
enhancement, we use the categorical approach or the modified categorical


      2 For the 16-level enhancement to apply, the prior conviction also must have been for
a felony, it must receive criminal history points, and the sentence imposed must have
exceeded 13 months. U.S.S.G. § 2L1.2(b)(1)(A). Rodriguez-Herrera does not contest that the
North Carolina conviction meets these other requirements.
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approach. Gonzalez-Terrazas, 529 F.3d at 297. The categorical approach asks
whether the particular statute of conviction, standing alone, always qualifies
for a sentencing enhancement. Id. If the statute would not always qualify for
a sentencing enhancement and is written in the disjunctive, we apply the
modified categorical approach, looking to a limited number of court documents
related to the defendant’s prior conviction to determine whether he was
actually convicted for a part of the statute that qualifies for an enhancement.
Id. In making this determination, we can only “look at so-called Shepard
documents.” United States v. Conde-Castaneda, 753 F.3d 172, 176 (5th Cir.
2014). Where the prior conviction was obtained through a guilty plea, as was
the case here, Shepard documents are “the statement of factual basis for the
charge, shown by a transcript of plea colloquy or by written plea agreement
presented to the court, or by a record of comparable findings of fact adopted by
the defendant upon entering the plea.” Shepard v. United States, 544 U.S. 13,
20 (2005).
      A violation of the statute for which Rodriguez-Herrera was convicted
(N.C. Gen. Stat. § 90-95) does not categorically qualify as a “drug trafficking
offense.” United States v. Lopez-Salas, 513 F.3d 174 (5th Cir. 2008). But the
statute is written in the disjunctive. See N.C. Gen. Stat. § 90-95(a). Thus, we
apply the modified categorical approach and look to Shepard documents
related to Rodriguez-Herrera’s prior conviction. See Gonzalez-Terrazas, 529
F.3d at 297.
      Rodriguez-Herrera argues that the documents regarding his North
Carolina conviction do not provide enough information to show that he was
convicted of a drug trafficking offense. We have two Shepard documents at our
disposal: the judgment and a criminal information.        The North Carolina
judgment lists the “Offense Description” as “conspiracy to sell and deliver
cocaine” and the offense date as May 15, 2008. It does not, however, specify
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                                 No. 13-40491
the charging instrument to which Rodriguez-Herrera pled guilty. The North
Carolina information is consistent with the judgment, stating that the offense
was “conspiracy to sell and deliver cocaine” and that the offense date was May
15, 2008. Further, both the judgment and the information list the same file
number (08CRS1588), the same court (the Superior Court Division in Pender
County), and the same offense class (G). The criminal information charges
that “the defendant named above unlawfully, willfully and feloniously did
conspire to knowingly sell and/or deliver a controlled substance (cocaine) to
another person.”
      Rodriguez-Herrera argues that it is plain error to consider the “Offense
Description” listed in the North Carolina judgment because there is no
indication that he assented to a judicial finding that his conviction involved a
conspiracy to sell or deliver cocaine. He points out that a judicial abstract is
generally insufficient to prove the part of a statute to which a defendant pled
guilty. United States v. Gutierrez-Ramirez, 405 F.3d 352, 357-58 (5th Cir.
2005). But the instant case is clearly distinguishable from Gutierrez-Ramirez
because, there, the abstract of judgment was the only evidence showing that
the conviction was for a particular part of a statute. See id. at 358 n.11. In
contrast, here, we have both the judgment, which contains a notation
specifying the particular offense, and a criminal information that is completely
consistent with the judgment and its notation. Taken together, the notation
on the judgment and its consistency with the criminal information strongly
indicate that Rodriguez-Herrera pled guilty to that particular criminal
information, which charges conspiracy to sell and/or deliver cocaine. Thus,
particularly given the lack of any directly on-point precedent here, it is not




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                                  No. 13-40491
clear and obvious error to determine that Rodriguez-Herrera’s prior conviction
was for conspiracy to sell and/or deliver cocaine.
      Rodriguez-Herrera next argues that a prior conviction for conspiracy to
sell and/or deliver cocaine is not a drug trafficking offense for two reasons, but
neither of his arguments demonstrates clear and obvious error. First, he
argues that a prior North Carolina conviction for conspiracy does not qualify
for a Sentencing Guidelines enhancement because North Carolina law does not
include an overt act as an element of conspiracy. But we recently decided that
a prior state conviction for conspiracy to commit murder qualifies for a U.S.S.G.
§ 2L1.2(b)(1)(A) enhancement, even if state law does not include an overt act
as an element of conspiracy to commit murder. United States v. Pascacio-
Rodriguez, 749 F.3d 353, 367-68 (5th Cir. 2014).           Given this precedent,
applying a Sentencing Guidelines enhancement based on a North Carolina
conspiracy conviction is not clear and obvious error, even though the conviction
did not require proof of an overt act.
      Second, Rodriguez-Herrera argues that his prior conviction for
“delivering” or “selling” is not a “drug trafficking offense” because it could
actually be a conviction for “administering” rather than “distributing” or
“dispensing,” and the Sentencing Guidelines do not include “administering” in
the definition of a “drug trafficking offense.” But we recently decided that a
defendant cannot avoid an enhancement under U.S.S.G. § 2L1.2(b)(1)(A) based
on the mere theoretical possibility that state law might sweep more broadly
than the Sentencing Guidelines by allowing convictions for “administering” a
controlled substance.    United States v. Teran-Salas, __ F.3d __, 2014 WL
4548530, at *4-6 (5th Cir. Sept. 15, 2014). Instead, the defendant must show
a “realistic probability” that the state would apply the relevant statute to
punish “administering” a controlled substance more expansively than the
Sentencing Guidelines definition of a “drug trafficking offense.” Id. Here,
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                               No. 13-40491
Rodriguez-Herrera has not established such a “realistic probability” because,
for example, he has not pointed to any North Carolina case that has punished
“administering” in this way.
                               CONCLUSION
     Applying the 16-level enhancement under U.S.S.G. § 2L1.2(b)(1)(A) to
Rodriguez-Herrera’s offense level was not plain error.      Accordingly, the
judgment is AFFIRMED.




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