     Case: 16-50629      Document: 00514030512         Page: 1     Date Filed: 06/13/2017




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

                                      No. 16-50629                                 FILED
                                                                               June 13, 2017
                                                                              Lyle W. Cayce
UNITED STATES OF AMERICA,                                                          Clerk

              Plaintiff - Appellee

v.

SERGIO JIMENEZ-IBARRA, also known as Sergio Ibarra-Jimenez, also
known as Sergio Jimenez, also known as Sergio Ibarra,

              Defendant - Appellant




                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 5:16-CR-16-1


Before REAVLEY, OWEN, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Defendant Sergio        Jimenez-Ibarra appeals            his   27-month below-
Guidelines sentence imposed following his guilty-plea conviction for illegal
reentry into the United States following deportation in violation of 8 U.S.C.
§ 1326. He contends, for the first time on appeal, that the district court erred
by enhancing his sentence 12 levels pursuant to Section 2L1.2(b)(1)(B) of the



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 16-50629
Guidelines because his 2006 Texas conviction does not constitute a “drug
trafficking offense.”       It is possible that Jimenez-Ibarra’s claimed error
regarding his sentencing enhancement is unreviewable.                   Nevertheless, we
conclude that the district court did not plainly err. We AFFIRM.


                FACTUAL AND PROCEDURAL BACKGROUND
       Sergio Jimenez-Ibarra, a citizen of Mexico, pled guilty in 2006 in Texas
state court to a violation of Section 481.112(b) of the Texas Health and Safety
Code. 1 That was a felony conviction even though Jimenez-Ibarra received only
a 60-day sentence. In July 2006, he was deported and notified that he could
not return to the United States without permission. In October 2013, federal
agents found him in Texas. He had been arrested by state authorities for
aggravated assault with a deadly weapon on his wife.                        Jimenez-Ibarra
remained in state custody for the next two years. A jury found him guilty of
the assault charge, and he was sentenced to three years in prison. He was
paroled in December 2015 and transferred to federal custody.
       In March 2016, Jimenez-Ibarra pled guilty before a federal magistrate
judge to illegal reentry, in violation of 8 U.S.C. § 1326(a) and (b).                      At
sentencing, his base offense level of 8 was increased by 12 levels pursuant to
Guideline     Section     2L1.2(b)(1)(B).         The    district   court    adopted      the
recommendation in the Presentence Investigation Report (“PSR”) that
Jimenez-Ibarra’s previous Texas felony drug offense for “possession with intent




       1 Section 481.112(b) is the penalty provision of the statute, which states: “An offense
under [Section 481.112(a)] is a state jail felony if the amount of the controlled substance to
which the offense applies is, by aggregate weight, including adulterants or dilutants, less
than one gram.” TEX. HEALTH & SAFETY CODE § 481.112(b). This subsection is linked to
subsection 481.112(a), which sets forth the actual offense: “[A] person commits an offense if
the person knowingly manufactures, delivers, or possesses with intent to deliver a controlled
substance listed in Penalty Group 1.” Id. § 481.112(a).
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to deliver a controlled substance P[enalty Group] I, less than 1 gram” was a
“drug trafficking offense.”   After a three-level acceptance-of-responsibility
reduction, Jimenez-Ibarra’s total offense level was 17, with an advisory
Guidelines range of 30 to 37 months. Jimenez-Ibarra did not object to the PSR
but requested a downward variance that the Government opposed. The district
court sentenced Jimenez-Ibarra to 27 months in prison, followed by three years
of supervised release. Jimenez-Ibarra timely appealed.


                                 DISCUSSION
      Jimenez-Ibarra’s primary contention is that his prior Texas felony
conviction does not constitute a drug-trafficking offense for purposes of
applying the 12-level enhancement of Section 2L1.1(b)(1)(B). He contends that
the Texas statute is overbroad because it criminalizes certain substances,
namely position isomers of cocaine, that are not covered by the Controlled
Substances Act (“CSA”). He further asserts that the district court erred in
relying on the PSR’s characterization of his offense. Instead, the court “could
not exclude the possibility that his” state conviction “rested on a substance that
is not covered by the CSA: a position isomer of cocaine.” Jimenez-Ibarra also
argues the Government failed to establish that the controlled substance
underlying his state-court conviction is covered by the CSA.
      Before we consider the merits of Jimenez-Ibarra’s challenge to his
sentence, we examine our standard of review. Generally, we review a district
court’s application or interpretation of the Guidelines de novo. United States
v. Reyna-Esparza, 777 F.3d 291, 293–94 (5th Cir. 2015).           That standard
governs our review of preserved errors. United States v. Neal, 578 F.3d 270,
273 (5th Cir. 2009). Our analysis of unpreserved errors is determined by
whether the defendant waived or forfeited his argument below.


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      “Waiver and forfeiture are two different means by which a defendant
may react to an error made by the government or the district court in the
proceedings in his case.” United States v. Dodson, 288 F.3d 153, 160 (5th Cir.
2002). “Forfeiture is the failure to make the timely assertion of a right[.]”
United States v. Arviso-Mata, 442 F.3d 382, 384 (5th Cir. 2006). We review
forfeited errors under the plain-error standard. Id. “[W]aiver is the intentional
relinquishment or abandonment of a known right.” United States v. Olano,
507 U.S. 725, 733 (1993). “It occurs by an affirmative choice by the defendant
to forego any remedy available to him, presumably for real or perceived
benefits resulting from the waiver.” Dodson, 288 F.3d at 160. An error that is
waived is unreviewable. United States v. Rodriguez, 602 F.3d 346, 350 (5th
Cir. 2010). “Review of invited errors is almost similarly precluded,” with those
errors being “reviewed only for manifest injustice.” Id. at 350–51.
      We examine how Jimenez-Ibarra’s counsel dealt with the issue at
sentencing. During the sentencing hearing, counsel stated that the PSR was
accurate in concluding that a 12-level enhancement could be applied due to
Jimenez-Ibarra’s prior offense.     Counsel, though, requested a downward
variance to an 18-to-24 month Guidelines range based on the fact that the
underlying offense “was charged as a possession with intent to deliver for less
than one gram,” was Jimenez-Ibarra’s first drug offense, and “there was no
plea bargain to anything less.” Obviously, then, no objection was made to the
applicability of the enhancement, just its suitability.
      Both parties assume our analysis is governed under the familiar plain-
error standard for forfeited errors. We apply that more demanding standard
because we affirm even under plain-error review.
      To establish plain error, Jimenez-Ibarra must show an error that was
clear or obvious and that affected his substantial rights. See Puckett v. United
States, 556 U.S. 129, 135 (2009). Even if he makes such a showing, we have
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the discretion to correct the error but only if it “seriously affect[s] the fairness,
integrity or public reputation of judicial proceedings.” Id. (quoting Olano, 507
U.S. at 736). We pretermit deciding whether the district court erred because,
as explained below, Jimenez-Ibarra cannot establish that any error was plain.
      “‘Plain’ error is error so clear or obvious that ‘the trial judge and
prosecutor were derelict in countenancing it, even absent the defendant’s
timely assistance in detecting it.’” United States v. Delgado, 672 F.3d 320, 330
(5th Cir. 2012) (en banc) (quoting United States v. Hope, 545 F.3d 293, 296 (5th
Cir. 2008)). Determining whether an error is “clear or obvious” requires us to
“look to the state of the law at the time of appeal,” and “decide whether
controlling circuit or Supreme Court precedent has reached the issue in
question, or whether the legal question would be subject to reasonable
dispute.” United States v. Fields, 777 F.3d 799, 802 (5th Cir. 2015).
      The Texas statute underlying Jimenez-Ibarra’s 2006 conviction prohibits
the knowing manufacture, delivery, or possession with intent to deliver “a
controlled substance listed in Penalty Group 1.” TEX. HEALTH & SAFETY CODE
§ 481.112(a). Penalty Group 1 includes “Cocaine, including: (i) its salts, its
optical, position, and geometric isomers, and the salts of those isomers . . . .”
Id. § 481.102(3)(D) (emphasis added). On the other hand, the CSA covers
“cocaine, its salts, optical and geometric isomers, and salts of isomers,” but does
not expressly list position isomers of cocaine. See 21 U.S.C. § 812 sched.
II(a)(4); see also 21 U.S.C. § 802(14) (“As used in schedule II(a)(4), the term
‘isomer’ means any optical or geometric isomer.”).           According to Jimenez-
Ibarra, because the Texas statute covers position isomers of cocaine and the
CSA does not, the Texas statute is overbroad and his prior conviction is not
categorically a “drug trafficking offense” under federal law.
      The Government sets forth three arguments that it suggests preclude a
finding of clear or obvious error. First, it argues that had Jimenez-Ibarra not
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remained silent on the issue, it would have been able to provide expert
testimony that the CSA’s broad definition of cocaine includes position isomers.
On this point, the Government relies on the general rule that “questions of fact
capable of resolution by the district court can never constitute plain error.”
United States v. Chung, 261 F.3d 536, 539 (5th Cir. 2001). Jimenez-Ibarra
responds by arguing that whether the CSA includes position isomers of cocaine
is a legal question determined by the statute’s plain language.
      The Government next argues that Jimenez-Ibarra has not established a
realistic probability that an individual could be prosecuted under the Texas
statute for possession with intent to deliver a position isomer of cocaine, which
it characterizes as a theoretical molecule.     On various occasions we have
applied a “common-sense approach” and determined that a technically
overbroad statute qualifies as a predicate offense for a Guidelines
enhancement if there is no “realistic probability” that the state would actually
apply its statute to conduct outside the scope of the federal definition of the
crime. See United States v. Teran-Salas, 767 F.3d 453, 460 (5th Cir. 2014); see
also United States v. Carrasco-Tercero, 745 F.3d 192, 197–98 (5th Cir. 2014).
To counter this point, Jimenez-Ibarra once again asserts that the plain
language of the statute controls and establishes that there is indeed a realistic
probability of prosecution for a Section 481.112 offense based on position
isomers of cocaine.
      The final argument raised by the Government focuses on the fact that
we have yet to determine whether the Texas controlled-substances schedules
are broader than those listed in the CSA. This argument seeks to undercut
Jimenez-Ibarra’s assertion that the Texas statute at issue is similar to certain
California statutes, which this court and the Ninth Circuit have held do not
categorically qualify as drug-trafficking offenses. For example, we adopted the
reasoning of the Ninth Circuit and held that for a violation of California Health
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and Safety Code Section 11351 to qualify as a “drug trafficking offense,” it
required the application of the modified-categorical approach because the
California statute was divisible. United States v. Gomez-Alvarez, 781 F.3d 787,
792–94 (5th Cir. 2015).
      Each of the Government’s arguments and their respective counterpoints
lead us to the same conclusion: Any error that occurred was not clear or
obvious. To begin with, the state of the law is not clear on whether the Texas
controlled-substances schedules are broader than those listed in the CSA. See
Fields, 777 F.3d at 802. “We ordinarily do not find plain error when we have
not previously addressed an issue.” United States v. Evans, 587 F.3d 667, 671
(5th Cir. 2009). That is because “if the law is unsettled within the circuit, any
error cannot be plain.” Fields, 777 F.3d at 805. Moreover, based on our prior
decision in Teran-Salas, it is at least subject to reasonable dispute whether
there is a “realistic probability” that Texas would apply its statute to
individuals charged with possession with intent to deliver position isomers of
cocaine.   See Teran-Salas, 767 F.3d at 458.      Errors subject to reasonable
dispute are never plain. See United States v. Ellis, 564 F.3d 370, 377–78 (5th
Cir. 2009).
      AFFIRMED.




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