   Case: 08-50031       Document: 00511072139          Page: 1    Date Filed: 04/06/2010




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

                                                 FILED
                                                                             April 6, 2010
                                       No. 08-50031
                                                                            Lyle W. Cayce
                                                                                 Clerk



UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee,

versus

MARTIN ALCALA-AVALOS,

                                                   Defendant-Appellant.




                   Appeal from the United States District Court
                        for the Northern District of Texas
                              No. 3:07-CR-1375-ALL




Before GARWOOD, SMITH, and CLEMENT, Circuit Judges.
PER CURIAM:*


       Martin Alcala-Avalos appeals his sentence. Finding no reversible error,
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
   Case: 08-50031         Document: 00511072139          Page: 2     Date Filed: 04/06/2010

                                         No. 08-50031

       Alcala-Avalos pleaded guilty to illegal reentry in violation of 8 U.S.C.
§ 1326(a). He had previously pleaded guilty of the unlawful sale of a controlled
substance in Colorado. 1 Because of that conviction, the presentence report for
the illegal-reentry charge recommended applying the 16-level drug-trafficking
enhancement in U.S.S.G. § 2L1.2(b)(1)(A)(i).2 At the sentencing hearing, the
court raised sua sponte the issue of whether the charging documents were suf-
ficient to support the enhancement. Finding that they were, the court applied
the enhancement and sentenced Alcala-Avalos to 46 months’ imprisonment, a
term at the bottom of the advisory sentencing range.
       Alcala-Avalos frames his statement of the issue in plain-error terms, but
his brief argues that de novo review applies because the purported error involves
the application of the federal sentencing guidelines. The government notes that
plain error “arguably applies,” because Alcala-Avalos did not object, but the gov-
ernment contends that our review is de novo under United States v. Izaguirre-
Flores, 405 F.3d 270, 272 (5th Cir. 2005) (per curiam), because the court raised
the general issue of the enhancement.



       1
           See COLO . REV . STAT . § 18-18-105 (1989). That statute stated, in relevant part:

       It is unlawful for any person knowingly to manufacture, dispense, sell, or dis-
       tribute, with or without remuneration, to possess, or to possess with intent to
       manufacture, dispense, sell, or distribute, with or without remuneration, a con-
       trolled substance; or to induce, attempt to induce, or conspire with one or more
       other persons to manufacture, dispense, sell, or distribute, with or without re-
       muneration, or to possess with intent to manufacture, dispense, sell, or distrib-
       ute, with or without remuneration, a controlled substance.

By contrast, Alcala-Avalos’s charging document stated, in relevant part, that he “did unlaw-
fully, feloniously and knowingly sell a Schedule III controlled substance, to-wit: Lysergic Acid.”
       2
           The applicable version of section 2L1.2 defined “drug-trafficking offense” as “an of-
fense under federal, state, or local law that prohibits the manufacture, import, export, distri-
bution, or dispensing of 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) (2006).

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       Alcala-Avalos’s sentencing hearing, however, did not consist of “exhaustive
briefing by the parties and consideration of the issue [as to whether or not the
enhancement applies].” Id. Instead, the court asked to see the charging docu-
ments to determine whether the enhancement applied. At no time before or af-
ter that did Alcala-Avalos give any indication that he believed the drug-traffick-
ing enhancement was inapplicable. Indeed, in stark contrast, he stood mute dur-
ing the sentencing hearing. If he disagreed with the enhancement, he should
have said so. Cf. United States v. Gutierrez-Ramirez, 405 F.3d 352, 355 (5th Cir.
2005).
       “A party must raise a claim of error with the district court in such a man-
ner so that the district court may correct itself and thus[] obviate the need for
our review.” 3 The error complained of was not obviated by the court’s sua sponte
decision to look at the charging documents. Alcala-Avalos does not assert on ap-
peal a failure to examine the documents; instead he complains of the court’s le-
gal conclusion that the enhancement appliedSSa conclusion to which he did not
object. Accordingly, we review for plain error.4
       Plain error arises where “(1) there was an error; (2) the error was clear and
obvious; and (3) the error affected the defendant’s substantial rights. Even then,
this court does not exercise its discretion to correct the error unless it seriously
affects the fairness, integrity, or public reputation of judicial proceedings, and
results in a miscarriage of justice.” United States v. Henao-Melo, 591 F.3d 798,
801-02 (5th Cir. 2009) (internal citations and quotation marks omitted).
       Alcala-Avalos asserts that the court erred in applying the enhancement



       3
         United States v. Rodriguez, 15 F.3d 408, 414 (5th Cir. 1994) (quoting United States
v. Bullard, 13 F.3d 154, 156 (5th Cir. 1994)).
       4
        See, e.g., United States v. Lopez-Velasquez, 526 F.3d 804, 806 (5th Cir), cert. denied,
129 S. Ct. 625 (2008) (“When a defendant fails to raise a procedural objection below, appellate
review is for plain error only.”).

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                                          No. 08-50031

for his conviction of unlawful sale of a controlled substance, because the statu-
tory definition of “sale” includes an offer to sell,5 which is not conduct that sup-
ports a drug-trafficking enhancement, see, e.g., United States v. Garza-Lopez,
410 F.3d 268, 274 (5th Cir. 2005), and the relevant documents 6 do not sufficient-
ly narrow the definition, see, e.g., Gutierrez-Ramirez, 405 F.3d at 355-56. That
argument, however, fails to take into account the difference among jurisdictions
with regard to the effect of a guilty plea. In some jurisdictions, a guilty plea con-
stitutes an admission of all the facts in the charging document. United States
v. Morales-Martinez, 496 F.3d 356, 359 (5th Cir. 2007). In others, a guilty plea
admits “only those material facts needed to support the conviction.” Id. “Be-
cause different jurisdictions have different rules, we must determine the effects
of a guilty plea in the jurisdiction in which [the defendant] entered his guilty
plea.” Id.
       There are no published opinions of this court stating how Colorado law
treats guilty pleas. That alone would suffice to render any error in applying the
enhancement not obvious.7 But one of our sister circuitsSSone that is doubtless
more familiar with Colorado law than are weSShas held that a guilty plea in Col-
orado courts admits everything in the charging document, even if the language
is used in the alternative. See United States v. Torres-Romero, 537 F.3d 1155,
1159-60 (10th Cir.), cert. denied, 129 S. Ct. 2174 (2008). If that were the case,
then the fact that “sell” is statutorily defined to include alternative definitions,


       5
           See COLO . REV . STAT . § 18-18-403(1).
       6
         That is, “the statutory definition, charging document, written plea agreement, tran-
script of plea colloquy, and any explicit factual finding by the trial judge to which the defen-
dant assented.” Shepard v. United States, 544 U.S. 13, 16 (2005).
       7
         See, e.g., United States v. Olea-Rivera, 318 F. App’x 292, 293 (5th Cir. 2009) (per cur-
iam) (“An error is clear or obvious only if it is clear under existing law, and an alleged error
is not clear or obvious if the relevant law is unsettled.”); United States v. Salinas, 480 F.3d
750, 756 (5th Cir. 2007).

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some of which might not constitute drug-trafficking offenses, would be irrele-
vant. Cf. Morales-Martinez, 496 F.3d at 358. We do not reach that difficult
question of Colorado law on this sparse record, however, because the court’s er-
ror, if any, was far from “clear or obvious.”8
       AFFIRMED.




       8
          Indeed, the spirited dissent in Torres-RomeroSSurging that Colorado law takes the
narrower approach that a guilty plea only admits as much as necessary to support a convic-
tion, see generally Torres-Romero, 537 F.3d at 1160-65 (Hartz, J., dissenting)SSonly confirms
our conclusion that any error was not obvious.

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