     Case: 16-10408      Document: 00514515818         Page: 1    Date Filed: 06/18/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT

                                                                        United States Court of Appeals

                                    No. 16-10408
                                                                                 Fifth Circuit

                                                                               FILED
                                  Summary Calendar                         June 18, 2018
                                                                          Lyle W. Cayce
UNITED STATES OF AMERICA,                                                      Clerk


                                                 Plaintiff-Appellee

v.

JOSE NAVA-MARTINEZ,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:15-CR-200-1


Before KING, ELROD, and HIGGINSON, Circuit Judges.
PER CURIAM: *
       Jose Nava-Martinez pleaded guilty to illegal reentry following
deportation in violation of 8 U.S.C. § 1326(a) and (b)(2).                Nava-Martinez
received a 16-level enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(i) (2014) and
was subject to a greater statutory maximum sentence under § 1326(b)(2) based
on his 2004 conviction for possession of a controlled substance with intent to
sell in violation of Tennessee Code Annotated § 39-17-417 The district court


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 16-10408

sentenced Nava-Martinez to 84 months of imprisonment, which was within the
recommended guidelines range of 77 to 96 months. Nava-Martinez filed a
timely notice of appeal.
      Nava-Martinez concedes that he did not object to the application of the
16-level “drug trafficking” enhancement and that this court’s review is limited
to plain error. See Puckett v. United States, 556 U.S. 129, 135 (2009). He
argues that the district court plainly erred in applying the enhancement under
§ 2L1.2(b)(1)(A)(i) (2014) because there was insufficient documentation to
support that his Tennessee conviction under § 39-17-417 was a drug trafficking
offense. He further argues that his counsel at sentencing was ineffective for
failing to object to the application of the enhancement.
      Nava-Martinez violated § 39-17-417, which makes it a crime to
knowingly:
      (1)    Manufacture of a controlled substance;
      (2)    Deliver a controlled substance;
      (3)    Sell a controlled substance; or
      (4)    Possess a controlled substance with intent to manufacture, deliver
             or sell the controlled substance

TENN. CODE ANN. § 39-17-417(a). The state court judgment lists the statute of
conviction as § 39-17-417, but it does not specify which subsection Nava-
Martinez violated.    The judgment does, however, describe the offense of
conviction as “UPCS W/I.” Nava-Martinez acknowledges that the abbreviation
stands for “unlawful possession of a controlled substance with intent.” Given
the description of the offense in the judgment, Nava-Martinez could only have
violated subsection (4) of § 39-17-417(a).
      He takes issue, however, with the district court’s reliance on the
description of the offense in the presentence report (PSR) as possession of a
controlled substance with intent to sell where the judgment of conviction does



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                                  No. 16-10408

not contain the words “to sell.” We have held that “the district court [is] not
permitted to rely on the PSR’s characterization of the offense in order to make
its determination of whether it [is] a ‘drug trafficking offense.’” United States
v. Garza-Lopez, 410 F.3d 268, 274 (5th Cir. 2005). Still, we recognized that
under the categorical approach, the district court could properly rely on the
statutory definition of the offense. Id. at 273-74.
      As the Government points out, Nava-Martinez does not even attempt to
show that § 39-17-417 criminalizes conduct that does not fall within the
definition of “drug trafficking offense” under § 2L1.2. “[T]he failure to raise an
issue on appeal constitutes waiver of that argument.” United States v. Griffith,
522 F.3d 607, 610 (5th Cir. 2008). Moreover, this court has yet to consider
whether a violation of § 39-17-417 is categorically a drug trafficking offense.
We ordinarily will not find plain error when as issue has not been previously
addressed, and we see no reason to do so on this occasion. United States v.
Evans, 587 F.3d 667, 671 (5th Cir. 2009).
      Finally, Nava-Martinez argues that he received ineffective assistance of
counsel at sentencing based on counsel’s failure to object to the application of
the enhancement under § 2L1.2(b)(1)(A)(i) (2014). “Sixth Amendment claims
of ineffective assistance of counsel should not be litigated on direct appeal,
unless they were previously presented to the trial court.” United States v.
Isgar, 739 F.3d 829, 841 (5th Cir. 2014) (internal quotation marks and citation
omitted). Because Nava-Martinez did not raise a claim of ineffective assistance
of counsel before the district court and the district court did not hold a hearing
on the issue, the record is not sufficiently developed for this court to consider
it on direct appeal. See id.
      AFFIRMED.




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