   Case: 09-20063       Document: 00511198328          Page: 1    Date Filed: 08/09/2010




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

                                                 FILED
                                                                           August 9, 2010
                                       No. 09-20063
                                                                            Lyle W. Cayce
                                                                                 Clerk



UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee,

versus

NOE HEREDIA SANCHEZ, also known as Noe Sanches Heredia, also known
as Noe Sanchez Heredia, also known as Noe Heredia-Sanchez,

                                                   Defendant-Appellant.




                    Appeal from the United States District Court
                         for the Southern District of Texas
                               USDC No. 4:08-CR-358




Before SMITH, WIENER and ELROD, Circuit Judges.
PER CURIAM:*


       Noe Sanchez pleaded guilty to an immigration offense. Calculating his
guideline range at sentencing, the court applied a sixteen-level enhancement for

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 09-20063

a prior conviction of a drug trafficking offense. Sanchez argues the enhancement
was applied erroneously. We affirm.


                                             I.
       Sanchez pleaded guilty of being found unlawfully in the United States af-
ter previously being removed following a conviction of an aggravated felony and
without having obtained consent of the Attorney General or the Secretary of the
Department of Homeland Security (“the Secretary”) to apply for admission, in
violation of 8 U.S.C. § 1326(a) and (b)(2).1 The presentence investigation report
(“PSR”) indicated that in 1998, Sanchez was convicted in Texas state court of de-
livery of a controlled substance after he attempted to sell cocaine to a police in-
formant. According to the PSR, Sanchez was sentenced to eight years’ probation
for the offense and later to two years’ incarceration after that probation was re-
voked.
       At sentencing, the court asked whether Sanchez had reviewed and under-
stood the PSR. Sanchez said he had. The court then asked whether he had any
questions about the PSR. Sanchez answered no. Next, the court noted that San-
chez had not filed any objections to the PSR and asked whether he had any ob-
jections to state at that time. Sanchez again answered no.
       The court then adopted the PSR as its own, “both the findings of fact and
the application of the guidelines to the facts.” The court calculated a total of-
fense level of 21, which included the PSR’s recommended 16-level enhancement
under U.S.S.G. § 2L1.2(b)(1)(A)(i) for prior conviction of a drug trafficking felony
for which the sentence imposed exceeded 13 months. Combined with a criminal
history category of IV, the court calculated a guideline range of 57 to 71 months’
incarceration and sentenced Sanchez to 57 months.


       1
        The function of the Attorney General in 6 U.S.C. § 1326(a) is made applicable to the
Secretary by 6 U.S.C. § 557.

                                             2
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                                   No. 09-20063

      Sanchez did not object to the PSR, the guideline calculation, or his sen-
tence in the district court. He argues, for the first time on appeal, that the
sixteen-level enhancement was erroneously applied because the court relied only
on the PSR for evidence of his prior drug-trafficking conviction.


                                         II.
      Because Sanchez did not object, we review for plain error only. United
States v. Hickman, 331 F.3d 439, 443 (5th Cir. 2003). To establish plain error,
he must show “(1) an error; (2) that is clear and obvious; and (3) that affected his
substantial rights.” United States v. Ramirez, 557 F.3d 200, 204-05 (5th Cir.
2009) (internal quotation marks and citation omitted). If those conditions are
met, we exercise our discretion to correct the error only if it “seriously affects the
fairness, integrity, or public reputation of judicial proceedings” (internal quota-
tion marks and citation omitted). Id.
      Sanchez argues that the district court erred by relying exclusively on the
PSR to establish whether his state conviction was a “drug trafficking offense” for
purposes of § 2L1.2(b)(1)(A)(i)’s 16-level enhancement. Under Shepard v. United
States, 544 U.S. 13, 16 (2005), he contends, the court could rely only on “the stat-
utory definition, charging document, written plea agreement, transcript of plea
colloquy, and any explicit factual finding by the trial judge to which the defen-
dant assented.”
      Sanchez’s argument is narrow: He does not dispute the existence of the
prior conviction, or that the facts underlying that conviction would support the
16-level enhancement if properly presented to the court, or even that the PSR’s
description of the conviction was correct. His only point is that the district court
needed to ground its factual findings about the prior conviction in one of the per-
missible sources of information under Shepard.
      Sanchez mischaracterizes the basis of the findings. The record shows that

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                                  No. 09-20063

he assented to the facts in the PSR, including those facts about his prior convic-
tion. “[R]eliance on a defendant’s admission of facts that are contained in the
PSR is permissible” to support a guideline enhancement. Ramirez, 557 F.3d at
204. It follows that Sanchez has shown no error that was clear or obvious. Id.
at 204-05. Alternatively, any purported error did not affect the fairness, integri-
ty, or public reputation of the judicial proceedings. Id. at 205.
      AFFIRMED.




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