     Case: 12-41152       Document: 00512343614         Page: 1     Date Filed: 08/16/2013




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

                                                                            FILED
                                                                          August 16, 2013
                                     No. 12-41152
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

DILER JAVIER TOLEDO-ENAMORADO,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 1:12-CR-286-1


Before DAVIS, BENAVIDES, and PRADO, Circuit Judges.
PER CURIAM:*
       Diler Javier Toledo-Enamorado (Toledo) appeals the 46-month sentence
of imprisonment imposed following his guilty plea conviction of being unlawfully
present in the United States after deportation. He contends that the district
court erred in applying a 12-level enhancement under U.S.S.G. § 2L1.2(b)(1)(B)
based on his June 2004 California conviction of possession of cocaine base for
sale, for which he was sentenced to a 36-month term of probation with a
condition that he serve 45 days in jail. Toledo argues that the prior conviction

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-41152     Document: 00512343614        Page: 2   Date Filed: 08/16/2013

                                  No. 12-41152

is not “a felony drug trafficking offense for which the sentence imposed was 13
months or less,” as required under § 2L1.2(b)(1)(B), because there was not a
condition that he serve at least 60 days in jail.
      Although Toledo objected to application of the 12-level enhancement, plain
error review applies because he is challenging the enhancement on a basis that
differs from the objections he raised in the district court. See United States v.
Cabral-Castillo, 35 F.3d 182, 188-89 (5th Cir. 1994). To demonstrate plain error,
Toledo must show a forfeited error that is clear or obvious and that affects his
substantial rights. Puckett v. United States, 556 U.S. 129, 135 (2009). If he
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. Id.
      As used in the applicable guideline, the term “‘[s]entence imposed’ has the
meaning given the term ‘sentence of imprisonment’ in Application Note 2 and
subsection (b) of § 4A1.2.” § 2L1.2, comment. (n.1(B)(vii)). A state sentence that
is entirely probated, with no requirement of incarceration, does not constitute
a term of imprisonment, as a defendant must have actually been incarcerated
during some part of his sentence. United States v. Rodriguez-Parra, 581 F.3d
227, 229-30 (5th Cir. 2009). “[T]he question is whether any time was actually
served on [the prior] sentence.” United States v. Brown, 54 F.3d 234, 240 (5th
Cir. 1995).
      Toledo’s California sentence qualifies as a “sentence of imprisonment”
under the definition set forth in Application Note 2 and subsection (b) of § 4A1.2,
as he was actually incarcerated during a part of his sentence. See Rodriguez-
Parra, 581 F.3d at 229-30; Brown, 54 F.3d at 240. Toledo has not shown clear
or obvious error. See Puckett, 556 U.S. at 135.
      AFFIRMED.




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