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

                                 No. 07-51263                              FILED
                               Summary Calendar                           May 23, 2008

                                                                    Charles R. Fulbruge III
UNITED STATES OF AMERICA                                                    Clerk

                                            Plaintiff-Appellee

v.

ARMANDO BARRON-VILLAFAN

                                            Defendant-Appellant


                 Appeal from the United States District Court
                      for the Western District of Texas
                        USDC No. 3:07-CR-1395-ALL


Before GARWOOD, WIENER and GARZA, Circuit Judges.
PER CURIAM:*
      Armando Barron-Villafan appeals the 82-month sentence imposed in
October 2007 following his plea of guilty to illegally reentering the United States
after being deported. His sole contention on appeal is that a 16-level increase
in his advisory guidelines offense level (producing a 70-87 month advisory
imprisonment range) was unlawful because his prior North Carolina conviction
for possession with intent to sell and deliver marijuana was not a “drug
trafficking offense” as defined by the Sentencing Guidelines.

      *
      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should not be published and is not precedent except under the limited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.
                                    No. 07-51263

      Under the discretionary sentencing system established by United States
v. Booker, 543 U.S. 220 (2005), “appellate review of sentencing decisions is
limited to determining whether they are ‘reasonable.’” Gall v. United States, 128
S. Ct. 586, 594 (2007). “Regardless of whether the sentence imposed is inside or
outside the Guidelines range, the appellate court must review the sentence
under an abuse-of-discretion standard.” Id. at 597. This court reviews a district
court’s interpretation and application of the Guidelines de novo and its factual
findings for clear error. See United States v. Villanueva, 408 F.3d 193, 202-03
& n.9 (5th Cir. 2005).
      The Guidelines define drug trafficking to include “possession of a
controlled substance . . . with intent to manufacture, import, export, distribute,
or dispense.” U.S.S.G. § 2L1.2(b)(1)(A)(I) & cmt. (n.1(B)(iv)). The district court
was permitted to consider and did properly consider (in open court and without
objection) Barron-Villafan’s indictment and judgment to determine whether his
crime fit within the guidelines definition of drug trafficking. See United States.
v. Garcia-Arellano, __F.3d__, 2008 WL 771709, *2 (5th Cir. Mar. 25, 2008) (citing
Shepard v. United States, 544 U.S. 13, 26 (2005)). The documents show that
Barron-Villafan was convicted of (and sentenced to a three year term of
imprisonment for) “possession with intent to sell and deliver” marijuana, a
controlled substance, in violation of N.C. GEN. STAT. § 90-95(a)(1). There is no
significant, inherent distinction between possession with intent to “deliver” and
possession with intent to “distribute.” United States v. Ford, 509 F.3d 714, 715
(5th Cir. 2007), petition for cert. filed (Apr. 16, 2008) (No. 07-10458). See also
United States v. Palacios-Quinonez, 431 F.3d 471, 474 (5th Cir. 2005).
Authorities applying a statutory definition of delivery that includes an “offer to
sell” are not controlling because the relevant North Carolina statute does not
criminalize an offer to sell (or offer to deliver).
      Barron-Villafan was previously convicted of a drug-trafficking offense as
defined by the Guidelines as possession with intent to distribute a controlled

                                          2
                                No. 07-51263

substance. § 2L1.2(b)(1)(A)(i) & cmt. (n.1(B)(iv)); § 90-95(a)(1). The district
court’s judgment is AFFIRMED.




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