     Case: 15-11169       Document: 00513822374         Page: 1     Date Filed: 01/05/2017




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

                                     No. 15-11169                              FILED
                                   Summary Calendar                      January 5, 2017
                                                                          Lyle W. Cayce
                                                                               Clerk
UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

JOSE ALBERTO VILLA-SANCHEZ,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:15-CR-255-1


Before BARKSDALE, HAYNES, and HIGGINSON, Circuit Judges.
PER CURIAM: *
       Jose Alberto Villa-Sanchez, a citizen of Mexico, appeals the sentence
imposed for his illegal reentry, in violation of 8 U.S.C. § 1326. In that regard,
Villa pleaded guilty to entering the United States without permission after
having been previously deported in 2011.
       In 2005, Villa was convicted, inter alia, of possession with intent to
deliver a controlled substance, in violation of Tex. Health & Safety Code
§ 481.112(a). The presentence investigation report (PSR) recommended, inter

       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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.
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                                   No. 15-11169

alia, the 2005 convictions qualified as drug-trafficking offenses, warranting a
Guidelines enhancement as defined under Guideline § 2L1.2 cmt. n.1(B)(iv).
Villa did not object to the recommended enhancement; and, at sentencing, the
court confirmed Villa had no objection to it. The court adopted the PSR and
sentenced Villa to 71-months’ imprisonment, within the advisory Guidelines
sentencing range.
      For the first time on appeal, Villa challenges the determination that his
prior Texas convictions qualified as drug-trafficking offenses, warranting an
enhancement under § 2L1.2(b)(1)(A)(i). Although post-Booker, the Sentencing
Guidelines are advisory only, the district court must avoid significant
procedural error, such as improperly calculating the Guidelines sentencing
range. Gall v. United States, 552 U.S. 38, 48–51 (2007). If no such procedural
error exists, a properly preserved objection to an ultimate sentence is reviewed
for substantive reasonableness under an abuse-of-discretion standard. Id. at
51; United States v. Delgado-Martinez, 564 F.3d 750, 751―53 (5th Cir. 2009).
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).
      Because Villa did not preserve his challenge in district court, review is
only for plain error. E.g., United States v. Broussard, 669 F.3d 537, 546 (5th
Cir. 2012). Under that standard, Villa must show a forfeited plain (clear or
obvious) error that affected his substantial rights. Puckett v. United States,
556 U.S. 129, 135 (2009). If he does so, we have the discretion to correct the
reversible plain error, but should do so only if it “seriously affect[s] the fairness,
integrity or public reputation of judicial proceedings”. Id.




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                                  No. 15-11169

      Villa contends his prior convictions do not qualify as drug-trafficking
offenses in the light of the 2008 revisions to § 2L1.2 cmt. n.1(B)(iv), which
added the below bracketed phrase to the Guideline:
      “Drug trafficking offense” means 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 a counterfeit substance) or the possession of a
      controlled substance (or counterfeit substance) with intent to
      manufacture, import, export, distribute or dispense.

§ 2L1.2 cmt. n.1(B)(iv) (2014) (brackets added). In support, Villa points to
United States v. Ford, 509 F.3d 714, 717―18 (5th Cir. 2007), in which our court
determined the same Texas offense at issue here qualified as a “controlled-
substance offense” pursuant to §§ 2K2.1(a)(4)(A) (2015), and 4B1.2(b) (2015).
Notably, the definition of “controlled-substance offense” was identical to the
pre-revision version of “drug-trafficking offense”. See Ford, 509 F.3d at 715.
Villa contends the 2008 revision to the “drug-trafficking offense” definition
evinces the intent, in response to Ford, to remove application of the
enhancement for prior convictions for possession with intent to offer for sale.
He reasons that the addition of “offer to sell” only to the list of qualifying
completed crimes, and not to crimes of possession with intent, demonstrates
the intent to exclude the Texas offense from triggering the enhancement.
      Villa, however, admits any error was not plain, and states he is raising
the issue to preserve it for possible further review. He contends, nonetheless,
that, because the error affects his substantial rights, this court should exercise
discretion to reverse the error. As Villa concedes, no plain error was committed
by the court’s application of § 2L1.2 cmt. n.1(B)(iv) (2014). And, our court only
has discretion to correct a plain (clear or obvious) error that affected his
substantial rights. Puckett, 556 U.S. at 135.
      AFFIRMED.


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