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

                                                 FILED
                                                                             July 9, 2009
                                     No. 08-40751
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

GUADALUPE GONZALEZ, JR.,

                                                   Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 5:06-CR-802-1


Before SMITH, GARZA, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Guadalupe Gonzalez, Jr. pleaded guilty to possession with intent to
distribute a quantity in excess of 50 kilograms of marijuana. The district court
determined that Gonzalez was a career offender based upon his prior Texas
conviction for aggravated assault and his Michigan conviction for possession
with intent to deliver 5 to 45 kilograms of marijuana. Based on this finding, the
district court enhanced Gonzalez’s sentence pursuant to U.S.S.G. § 4B1.1(a) and
sentenced him to 151 months of imprisonment. Gonzalez sought relief pursuant

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
                                  No. 08-40751

to 28 U.S.C. § 2255 and was granted an out-of-time appeal in accordance with
United States v. W est, 240 F.3d 456, 460 (5th Cir. 2001). Gonzalez thereafter
filed a timely notice of appeal following reentry of the judgment of conviction.
      Gonzalez acknowledges the existence of his Michigan drug conviction
under Public Health Code § 333.7401. He argues, however, that the Michigan
statute is broader than the definition of a “controlled substance offense” as
defined in U.S.S.G. § 4B1.2(b) because the Michigan statute punishes those who
“create” a controlled substance offense, as well as those who manufacture or
deliver or possess with intent to manufacture or deliver a controlled substance.
See Mich. Comp. Laws Ann. § 333.7401. Section 4B1.2(b) does not include the
term “create” in its definition of “controlled substance offense.” Gonzalez thus
argues that the Michigan statute on its face does not constitute a controlled
substance offense within the meaning of Section 4B1.2(b). Gonzalez further
argues that the documents submitted at sentencing failed to show that his prior
conviction qualified as a controlled substance offense. He thus contends that the
district court erred in applying the career offender enhancement to his sentence.
      As Gonzalez acknowledges, he failed to raise the argument he now raises
on appeal before the district court. As such, review is for plain error. United
States v. Campos-Maldonado, 531 F.3d 337, 339-40 (5th Cir.), cert. denied, 129
S. Ct. 328 (2008). To show plain error, the appellant must show a forfeited error
that is clear or obvious and that affects his substantial rights. Puckett v. United
States, 129 S. Ct. 1423, 1429 (2009). If the appellant makes such a showing, this
court has the discretion to correct the error but only if it seriously affects the
fairness, integrity, or public reputation of judicial proceedings.
      Generally, when classifying a conviction for sentencing enhancement
purposes, this court employs the categorical approach set forth in Taylor v.
United States, 495 U.S. 575, 602 (1990), and looks to the elements of the prior
offense, rather than to the facts underlying the conviction. See United States v.
Garza-Lopez, 410 F.3d 268, 273 (5th Cir. 2005). However, when a defendant has

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violated a statute that contains multiple disjunctive sections that prohibit
conduct that will support a sentence enhancement and other conduct that will
not support an enhancement, courts may look to “certain conclusive records
made or used in adjudicating guilt” to determine which section applies to the
defendant’s conviction. United States v. Bonilla-Mungia, 422 F.3d 316, 320 (5th
Cir. 2005) (internal quotation marks and citation omitted). “This court has held
that the determination of whether a “drug trafficking offense” was committed
falls into the narrow range of cases where the court may consider information
other than the statutory definition of the offense.” Garza-Lopez, 410 F.3d at 273.
A case involving the determination of whether a “controlled substance offense”
occurred is treated in the same manner, since the Guidelines’ definition for “drug
trafficking offense” is almost identical to the definition of “controlled substance
offense.” See United States v. Ford, 509 F.3d 714, 718 n.2 (5th Cir.2007).
      State court documents filed in the record by the district court as part of the
Section 2255 proceeding reflect that Gonzalez was charged and convicted of
conduct that falls within the definition of a controlled substance offense as that
term is defined in Section 4B1.2(b) of the Guidelines. According to the felony
information, Gonzalez “did possess with the intent to deliver 5 kilograms or
more, but less than 45 kilograms of marijuana or a mixture containing
marijuana; contrary to MCL 333.7401(2)(d)(ii).” According to the judgment of
conviction, Gonzalez pleaded guilty to “CONT SUBS-DELY/MFG 5-45 KG MJ”
a violation of MCL § 333.7401(2)(d)(ii).      The language of both the felony
information and the judgment reflect that Gonzalez’s conviction involved “the
manufactur[ing]” and “distribution . . . of a controlled substance” and not the
“creat[ing]” of a controlled substance. See U.S.S.G. § 4B1.2(b). Because the
conduct described in Gonzalez’s state felony information and judgment of
conviction is equivalent to the offense of possession of a controlled substance
with intent to deliver, the district court did not plainly err in finding that
Gonzalez’s Michigan conviction qualified as a controlled substance offense and

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enhancing his offense level under Section 4B1.1(a). See Ford, 509 F.3d at 717.
Accordingly, the judgment of the district court is AFFIRMED.




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