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

                                                FILED
                                                                  May 1, 2009
                                No. 08-40433
                              Summary Calendar               Charles R. Fulbruge III
                                                                     Clerk

UNITED STATES OF AMERICA

                                           Plaintiff-Appellee

v.

MARIO ALBERTO GARCIA-BALDERAS

                                           Defendant-Appellant


                 Appeal from the United States District Court
                      for the Southern District of Texas
                          USDC No. 7:07-CR-1227-1


Before WIENER, STEWART, and CLEMENT, Circuit Judges.
PER CURIAM:*
      Defendant-Appellant Mario Alberto Garcia-Balderas appeals his 77-month
sentence of imprisonment following his guilty-plea conviction for illegal reentry
following deportation. Garcia-Balderas contends that the district court erred in
calculating the advisory guidelines sentencing range when the district court
imposed a 16-level adjustment under U.S.S.G. § 2L1.2(b)(1)(A), based on a prior
state conviction. The district court based the adjustment on Garcia-Balderas’s



      *
      Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
                                  No. 08-40433

Texas state conviction for delivery of marijuana in amount of more than 50
pounds but less than 200 pounds, or a Texas state conviction for aggravated
assault.
      Garcia-Balderas has failed to establish plain error because the evidence
with which the government supplemented the record on appeal demonstrates
that Garcia-Balderas was convicted of delivery by actual transfer of marijuana,
an offense that qualifies as a drug trafficking offense under § 2L1.2(b)(1)(A). See
United States v. Garcia-Arellano, 522 F.3d 477, 481 (5th Cir.), cert. denied, 129
S. Ct. 353 (2008); United States v. Gonzales, 484 F.3d 712, 714-15 (5th Cir.), cert.
denied, 127 S. Ct. 3031 (2007). As Garcia-Balderas failed to demonstrate plain
error in the application of the enhancement on the basis of the drug offense, we
do not consider the other possible basis for the enhancement, viz., the
aggravated assault. See United States v. Jackson, 453 F.3d 302, 308 n.11 (5th
Cir. 2006).
      AFFIRMED.




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