     Case: 13-41138       Document: 00512760340         Page: 1     Date Filed: 09/08/2014




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

                                                                                    FILED
                                     No. 13-41138                            September 8, 2014
                                   Summary Calendar
                                                                               Lyle W. Cayce
                                                                                    Clerk
UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

OSCAR ALEXIS FOLGAR-MAJANO,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 1:13-CR-463-1


Before SMITH, BARKSDALE, and PRADO, Circuit Judges.
PER CURIAM: *
       Oscar Folgar-Majano pleaded guilty to, and was convicted of, being found
illegally in the United States following deportation, in violation of 8 U.S.C.
§ 1326(a) and (b)(1). He challenges his sentence, asserting the district court
erred by applying a 16-level enhancement, pursuant to Sentencing Guideline
§ 2L1.2(b)(1)(A)(i), for his having incurred a conviction for a drug-trafficking
offense: his 2010 California cocaine-base conviction under California Health


       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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.
    Case: 13-41138      Document: 00512760340     Page: 2    Date Filed: 09/08/2014


                                   No. 13-41138

and Safety Code § 11352(a) (transportation, sale, giving away, etc., of
designated controlled substances).
         Folgar claims the information in his California case did not narrow the
offense of conviction to one falling within the definition of a drug-trafficking
offense because, although it charged him with selling and offering to sell
cocaine base, the charging clause also included an allegation he imported, sold,
furnished, administered, and gave away cocaine base and offered to commit
these same acts. He further maintains the district court erred by relying on a
paragraph of the information citing California Penal Code § 1203.073(b)(7)
(denying probation to persons convicted of selling or offering to sell cocaine
base).
         Although post-Booker, the Sentencing Guidelines are advisory only, and
a properly preserved objection to an ultimate sentence is reviewed for
reasonableness under an abuse-of-discretion standard, the district court must
still calculate properly the Guidelines-sentencing range for use in deciding on
the sentence to impose. Gall v. United States, 552 U.S. 38, 51 (2007). In that
respect, for issues preserved in district court, its application of the Guidelines
is reviewed de novo; its factual findings, only for clear error. E.g., United States
v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008). When this court
interprets terms found in the Guidelines, “the relevant Commentary in the
Guidelines Manual is authoritative unless it violates the Constitution or a
federal statute, or is inconsistent with, or a plainly erroneous reading of, that
[G]uideline”. United States v. Diaz-Corado, 648 F.3d 290, 292 (5th Cir. 2011)
(citation and internal quotation marks omitted).
         In district court, Folgar objected to the enhancement on the same
grounds he raises here; therefore, his objections were sufficient to preserve the
issue for review. We review the district court’s application of the Guidelines



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                                  No. 13-41138

enhancement de novo, and, if we find error, determine whether the error was
harmless. E.g., United States v. Espinoza-Acuna, 328 F. App’x 918, 919 (5th
Cir. 2009).
      Guideline § 2L1.2 provides for a 16-level increase in the base-offense
level for a defendant convicted of illegal reentry if the defendant has been
convicted previously of “a felony that is . . . a drug trafficking offense for which
the sentence imposed exceeded 13 months”. U.S.S.G. § 2L1.2(b)(1)(A)(i). The
commentary to § 2L1.2 defines “drug trafficking offense” as “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 the
possession of a controlled substance . . . with intent to manufacture, import,
export, distribute, or dispense”. U.S.S.G. § 2L1.2, cmt. n.1(B)(iv).
      We analyze whether a past conviction is a drug-trafficking offense under
the Guidelines by applying a categorical approach, which examines “the
elements of the statute of conviction rather than a defendant’s specific
conduct”. United States v. Rodriguez, 711 F.3d 541, 549 (5th Cir.) (en banc),
cert. denied, 134 S. Ct. 512 (2013). If the statute of conviction is divisible,
however, we may consult allegations in a charging instrument to which a
defendant pleaded guilty. Id. at 549 n.8 (providing charging document, terms
of plea agreement, and transcript of recitation of factual basis as examples).
When, as here, a statute includes conduct that both does and does not
constitute a drug-trafficking offense, we may look to those documents “only for
the limited purpose of ascertaining which of the disjunctive elements the
charged conduct implicated”. United States v. Miranda-Ortegon, 670 F.3d 661,
663 (5th Cir. 2012); see also United States v. Gutierrez-Ramirez, 405 F.3d 352,
356–59 (5th Cir. 2005).




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                                 No. 13-41138

      Folgar asserts, and the Government concedes, that § 11352(a) is
disjunctive and that the statute is broader than the definition of a drug-
trafficking offense. In other words, § 11352(a) may be violated in ways that do
not fall within that definition and therefore do not merit the enhancement.
The abstract of the judgment of conviction states that Folgar was convicted of
“TRANSPORT/SELL NARC CNTL SUBST” in violation of § 11352(a).                  The
abstract also states Folgar was convicted of count one of the criminal
information. The information provides:
      [Folgar] did . . . commit the crime of SALE AND OFFER TO SELL
      A CONTROLLED SUBSTANCE, to wit:                   Violating Section
      11352(a) of the Health and Safety Code, a Felony, in that said
      defendant did willfully and unlawfully import into the State of
      California, sell, furnish, administer, give away, and offer to import
      into the State of California, sell, furnish, administer, give away a
      controlled substance, to wit: COCAINE BASE SCHEDULE I.

      Selling and offering to sell are offenses falling within the definition of a
drug-trafficking offense, and they are two specific ways of violating § 11352(a).
See U.S.S.G. § 2L1.2, cmt. n.1(B)(iv).      Although a California information
generally states the name of the crime before the specific act violating the
statute, such order is merely the suggested format. See Cal. Penal Code § 951
(indictment or information; form). We construe the information as alleging
Folgar violated § 11352(a) by selling and offering to sell cocaine base. Because
selling and offering to sell fall within the definition of a drug-trafficking
offense, the district court did not err by imposing the 16-level adjustment.
(Because we find no error based on our analysis of the language of count one
under §11352, we need not decide whether the district court erred by relying
on the portion of the information referencing § 1203.073(b)(7).)
      AFFIRMED.




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