                               UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 06-4950


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

           v.

GEOMAR QUINTERO, a/k/a Solis Delqui,

                Defendant – Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte.   Robert J. Conrad,
Jr., Chief District Judge. (3:06-cr-00024)


Argued:   September 25, 2008                 Decided:   October 17, 2008


Before WILKINSON, MICHAEL, and SHEDD, Circuit Judges.


Affirmed by unpublished per curiam opinion.


ARGUED: Matthew Segal, FEDERAL DEFENDERS OF WESTERN NORTH
CAROLINA, INC., Asheville, North Carolina, for Appellant.   Amy
Elizabeth Ray, OFFICE OF THE UNITED STATES ATTORNEY, Asheville,
North Carolina, for Appellee.      ON BRIEF: Cecilia Oseguera,
FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Charlotte,
North Carolina, for Appellant. Gretchen C. F. Shappert, United
States Attorney, Charlotte, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

         Geomar    Quintero       pleaded           guilty    to      one   count   of       illegal

reentry into the United States by a convicted felon in violation

of   8    U.S.C.        §§1326(a)       and    (b)(2).           He     received    a     16-level

sentence         enhancement          pursuant       to    U.S.       Sentencing       Guidelines

Manual §2L1.2(b)(1)(A) based on his previous deportation after

conviction         of     a    “drug     trafficking          offense”        for      which      the

sentence imposed exceeded 13 months.                         The defendant appeals this

enhancement.             He    argues        that    the     sentencing       court     erred      in

finding         that     his     prior        conviction         qualified        as     a     “drug

trafficking        offense”       under        §2L1.2      and     an   “aggravated          felony”

under §1326(b)(2).               He also argues that the sentencing court’s

use of a prior conviction to enhance his sentence violated his

Sixth         Amendment       right     to    a     jury     trial.         We    reject       these

arguments and affirm the sentence.



                                                    I.

         On    March    15,     2006,    the        defendant      pleaded       guilty      to   the

charge of illegal reentry into the United States by a convicted

felon in violation of 8 U.S.C. §§1326(a) and (b)(2).                                         At the

sentencing hearing, the court found an offense level of 21 based

on the presentence report which calculated a base offense level

of eight, a 16-level enhancement pursuant to §2L1.2(b)(1)(A) for

previous        deportation       after        conviction        of     a   “drug   trafficking

                                                    2
offense,”     and      a     three-level            reduction     for    acceptance       of

responsibility.             The        defendant       objected     to     the    16-level

enhancement      on    the        ground    that      his   1996    conviction         under

California Health and Safety Code §11352(a) did not constitute a

“drug trafficking offense.”                 Specifically, the defendant argued

that because he pleaded no contest to §11352(a), which covers

some   conduct      that     is    a    “drug       trafficking    offense”      and   some

conduct that is not a “drug trafficking offense,” he was not

necessarily      convicted             of   committing       a     “drug       trafficking

offense.”        The       defendant        also      objected     to    the     documents

proffered by the government to narrow the charge.                           The district

court agreed that the statute was too broad to categorically

qualify as a “drug trafficking offense,” but held that the plea

colloquy and other judicially noticeable documents established

that the defendant had pleaded no contest to the sale of cocaine

base which was indisputably a “drug trafficking offense.”                               The

court found that the defendant’s criminal history category was

II and the corresponding Guidelines’ range for an offense level

of 21 was 41 to 51 months’ imprisonment.                          The court sentenced

the defendant to 41 months’ imprisonment.                        Quintero now appeals

this sentence.




                                                3
                                       II.

     Quintero    claims       that    the        sentencing    court        erred       in

enhancing his sentence pursuant to U.S.S.G. §2L1.2 based on a

determination that his 1996 conviction for violating §11352(a)

was a “drug trafficking offense.”             We     review     the        sentencing

court’s determination de novo because it is a question of law.

See United States v. Chacon, 533 F.3d 250, 253 (4th Cir. 2008).

     According        to    U.S.S.G.         §2L1.2(b)(1)(A),          a        16-level

enhancement is warranted for illegal reentry in violation of 8

U.S.C. §1326 if the defendant was previously deported after “a

conviction for a felony that is (i) a drug trafficking offense

for which the sentence imposed exceeded 13 months.”                             U.S.S.G.

§2L1.2(b)(1)(A).           Application       Note    1(B)(iv)     defines          “drug

trafficking offense” as “an offense under federal, state, or

local   law   that     prohibits      the     manufacture,      import,          export,

distribution,    or    dispensing     of     a    controlled    substance         (or    a

counterfeit    substance)”     or    possession       with    intent       to    do    the

same.   U.S.S.G. §2L1.2 cmt. n.1(B)(iv).

     The parties argue extensively over whether §11352(a) is a

“drug trafficking offense” on its face and whether the extended

list of verbs in §11352(a) fit within the definition of “drug

trafficking     offense”      in     U.S.S.G.       §2L1.2     Application            Note

1(B)(iv).     We see no need to explore this question because the

plea colloquy so clearly establishes that the defendant’s 1996

                                         4
conviction       was   for    selling       cocaine     base    which    unquestionably

constitutes a “drug trafficking offense.”

        The sentencing court did not err in relying on the plea

colloquy.        Shepard v. United States permits courts to look to

elements    “necessarily         admitted”        by   the     defendant      in    a    prior

guilty plea to determine whether a prior conviction qualifies

for     a   sentence      enhancement.              544      U.S.   13,       16     (2005).

Specifically,      courts       are    permitted       to    examine    the     “statutory

definition,        charging        document,           written      plea        agreement,

transcript of plea colloquy, and any explicit factual finding by

the trial judge to which the defendant assented.” Id.

        The plea colloquy makes clear that the defendant’s 1996

conviction under §11352(a) was for the sale of cocaine base.                               On

January 12, 1996, the defendant pleaded no contest to one count

of    violating        §11352(a)      and     was      sentenced    to     five         years’

imprisonment.           There    are    two       clear     instances      in      the   plea

colloquy where the defendant admitted that he was pleading no

contest to the sale of cocaine base.                    First, the court began the

plea hearing by stating: “Charged with selling cocaine base on

July 12, 1995 in violation of §11352(a) of the Health and Safety

Code.       Do   you     understand      that       charge,     Sir?”    The       defendant

responded “Yes.”             Second, the court later asked: “How do you

plead to the charge that you violated Health and Safety Code

§11352(a), sale of cocaine base?” The defendant responded “No

                                              5
contest.”        These statements establish that the defendant pleaded

no contest to the sale of cocaine base.

        The    defendant    argues       that     the    sentencing       court    was    not

permitted to consider the plea colloquy because the defendant

did not confirm the factual basis for the plea as required by

Shepard, and therefore the facts were not “necessarily admitted”

by   the      defendant.         See   Shepard,       544    U.S.   at    26    (permitting

courts to look to plea colloquies “in which the factual basis

for the plea was confirmed by the defendant”).                           We find no merit

in this argument.            As discussed above, the defendant directly

admitted that he was pleading no contest to the “sale of cocaine

base” and “selling cocaine base.”                  Furthermore,           during the plea

colloquy defendant’s counsel stipulated to a factual basis after

the defendant made these statements.                        Therefore, the sentencing

court did not err in relying on the plea colloquy to determine

that the defendant’s 1996 conviction was for the sale of cocaine

base.

      The sale of cocaine base undeniably qualifies as a “drug

trafficking offense” under U.S.S.G. §2L1.2 because it is the

“distribution,       or    dispensing       of    a     controlled       substance.”      See

U.S.S.G.       §2L1.2     cmt.    n.1(B)(iv).           Therefore,        the    sentencing

court      was    correct        to    conclude       that    the    defendant’s         1996

conviction was a “drug trafficking offense” and did not err in

applying a 16-level enhancement under §2L1.2(b)(1)(A).

                                             6
       We need not consider the defendant’s arguments with respect

to   the     admissibility      of   the    other       documents.         Any    possible

resulting errors would be harmless in light of the fact that the

plea       colloquy    unequivocally       establishes      that     the    defendant’s

1996 conviction was a “drug trafficking offense.”*



                                           III.

       The defendant also claims that the sentencing court’s use

of his prior conviction to enhance his sentence violates his

Sixth Amendment right to a jury trial.                    The defendant makes this

argument       merely    to   preserve      it    for    appeal     because,       as   the

defendant       properly      concedes,     current       Supreme    Court        doctrine

forecloses       his    argument.          See    Almendarez-Torres          v.     United

States, 523 U.S. 224 (1998) (holding that the Constitution does

not require that prior convictions be alleged in an indictment

for a guilty plea or proven to a jury beyond a reasonable doubt

in order to be the basis of a sentence enhancement); see also


       *
       The defendant also claims, apparently for the first time
on appeal, that the district court erred in applying a statutory
sentencing enhancement pursuant to 8 U.S.C. §1326(b)(2) based on
a determination that his 1996 conviction was an “aggravated
felony.”   For the reasons stated above, the district court did
not err in relying on the plea colloquy to determine that the
defendant’s 1996 conviction was for the sale of cocaine base.
The sale of cocaine base is unquestionably an “aggravated
felony” which is defined to include “illicit trafficking in a
controlled substance.” 8 U.S.C. §1101(a)(43)(B).



                                            7
Apprendi v. New Jersey, 530 U.S. 466, 490 (2000) (“Other than

the fact of a prior conviction, any fact that increases the

penalty for a crime beyond the prescribed statutory maximum must

be submitted to a jury, and proved beyond a reasonable doubt.”)

(emphasis added).      Despite some questioning of the continued

vitality of the prior conviction exception, see Shepard, 544

U.S. at 27-28 (Thomas, J., concurring in part and concurring in

the   judgment),   Almendarez-Torres   is   still   good   law   and   this

court is bound to follow it.      See United States v. Cheek, 415

F.3d 349 (4th Cir. 2005).     Therefore, we reject the defendant’s

argument.



                                 IV.

      For the foregoing reasons, we affirm the sentence.

                                                                 AFFIRMED




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