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

                                                                     FILED
                                                                    August 13, 2008
                                  No. 07-41007
                                                               Charles R. Fulbruge III
                                                                       Clerk

UNITED STATES OF AMERICA

                                             Plaintiff - Appellee
v.

JUAN CARLOS FUENTES-OYERVIDES

                                             Defendant - Appellant



                 Appeal from the United States District Court
                      for the Southern District of Texas



Before HIGGINBOTHAM, STEWART, and SOUTHWICK, Circuit Judges.
PER CURIAM:
      Juan Carlos Fuentes-Oyervides pled guilty to an attempt to enter the
United States illegally. He was sentenced to 37 months in prison and three
years of supervised release. Fuentes-Oyervides appeals his sentence, arguing
that it was improperly enhanced. We affirm.
      This conviction was under 8 U.S.C. § 1326. Under the Sentencing
Guidelines, the offense level for unlawfully entering the United States is
increased by twelve levels if the defendant was previously deported after being
convicted of a felony drug trafficking offense that resulted in a sentence of
thirteen months or less in prison. U.S.S.G. § 2L1.2(b)(1)(B). The same Guideline
defines “drug trafficking offense” as “an offense under federal, state, or local law
                                   No. 07-41007

that prohibits the manufacture, import, export, distribution, or dispensing of, or
offer to sell a controlled substance . . . or the possession of a controlled substance
. . . with intent to manufacture, import, export, distribute, or dispense.” U.S.S.G.
§ 2L1.2, cmt. n.1(B)(iv).
      The presentence report calculated a twelve-level increase for Fuentes-
Oyervides based upon his 2005 guilty plea to an Ohio drug trafficking offense.
The Ohio statute provides that no person shall knowingly “[p]repare for
shipment, ship, transport, deliver, prepare for distribution, or distribute a
controlled substance, when the offender knows or has reasonable cause to believe
that the controlled substance is intended for sale or resale by the offender or
another person.” Ohio Rev. Code Ann. § 2925.03(A)(2). The district court
rejected Fuentes-Oyervides’s objections to the PSR calculation.
      On appeal, Fuentes-Oyervides renews the argument he made below that
the twelve-level increase was improper on the basis that the state statute
criminalizes behavior that does not fall within the Guidelines’ definition of a
“drug trafficking offense.” Specifically, he argues that at least some of the
actions prohibited by the state statute fall outside of the Guidelines definition
of “drug trafficking offense.” Compare Ohio Rev. Code Ann. § 2925.03(A)(2)
(including preparing drugs for shipment and transporting drugs) with U.S.S.G.
§ 2L1.2(b)(1)(B) (prohibiting “manufacture,” “import,” “export,” “distribution,”
“dispensing of” or “offering to sell”). Fuentes-Oyervides further contends that a
state conviction would not meet the alternative possession-with-intent clause of
the Guideline because the state statute lacks a sufficient mens rea requirement.
Specifically, the state statute only requires 1) knowledge or negligence, 2) as to
another’s intent. In contrast, the Guideline requires that the offender actually
intend to manufacture or distribute.            Compare Ohio Rev. Code Ann.
§ 2925.03(A)(2) (“when the offender knows or has reasonable cause to believe
that the controlled substance is intended for sale or resale by the offender or

                                          2
                                       No. 07-41007

another person”) with U.S.S.G. § 2L1.2(b)(1)(B) (prohibiting “possession of a
controlled substance . . . with intent to manufacture, import, export, distribute,
or dispense”).
       We review de novo a determination that a prior state conviction
constitutes a drug trafficking offense. United States v. Gutierrez-Ramirez, 405
F.3d 352, 355-56 (5th Cir. 2005). When we analyze whether a “drug trafficking
offense” was committed, we may look beyond the elements of the offense and
may consider the statutory definition of the predicate offense, the charging
papers, and any jury instructions. See United States v. Garza-Lopez, 410 F.3d
268, 273 (5th Cir. 2005).
       Other Circuits have considered the nearly identical question whether a
conviction under this Ohio statute qualifies for a “controlled substance offense”
adjustment under the Guidelines.1 Our sister Circuits have uniformly concluded
that the state conviction qualifies. See United States v. Miles, 266 F. App’x 534
(9th Cir. 2008) (unpublished); United States v. Karam, 496 F.3d 1157 (10th Cir.
2007); United States v. Wright, 43 F. App’x 848 (6th Cir. 2002) (unpublished)
(cited approvingly by United States v. Montanez, 442 F.3d 485, 490 (6th Cir.
2006), the latter case involving a different subsection of the Ohio statute).
       In one of these precedents from another Circuit, the defendant argued that
some of the actions criminalized by the Ohio statute – such as preparing drugs
for shipment, and shipping and transporting drugs – involve mere possession;
consequently, the statute could be violated simply by possession of a controlled
substance with reasonable cause to believe the drugs are intended for sale.

       1
         This Circuit has noted that the definitions of a “drug trafficking offense” under
U.S.S.G. § 2L1.2(b)(1)(B) and a “controlled substance offense” under U.S.S.G. § 4B1.2(b) are
“almost identical.” United States v. Ford, 509 F.3d 714, 717 n.2 (5th Cir. 2007). Compare
U.S.S.G. § 2L1.2, cmt. n.1(B)(iv) with U.S.S.G. § 4B1.2(b). Accordingly, we have relied on cases
interpreting a drug trafficking offense to determine whether a conviction was a controlled
substance offense, and vice versa. See United States v. Price, 516 F.3d 285, 287-289 (5th Cir.
2008); Ford, 509 F.3d at 717.

                                               3
                                  No. 07-41007

Karam, 496 F.3d at 1167. Like Fuentes-Oyervides does here, Karam argued
that a “reasonable cause to believe” mens rea standard was insufficient to satisfy
the definition of a controlled substance offenses, which requires possession with
intent to distribute. Id. Yet the Karam court rejected the contention that it had
to evaluate the question under the possession-with-intent prong of the
Guideline. Instead, it concluded that each of the acts prohibited by the Ohio
statute “involves the actual distribution of a controlled substance rather than
mere possession,” making all violations of the Ohio statute qualify under the
first part of the Guideline as “distribution” of a controlled substance. Id. The
court explained that because a violation of the Ohio statute requires that an
offender at a minimum have reason to believe the drugs are intended for sale by
someone, possession would never be sufficient for conviction:
      If an individual has knowledge or reasonable cause to believe drugs
      are intended for sale by another, the preparation for shipment,
      shipment, or transport of those drugs cannot simply involve the
      possessory act of one person moving his own drugs, as Karam
      asserts. Rather, each of these acts is an integral part of the
      distribution process and is therefore an act of distribution in and of
      itself. Simply because the Ohio statute prohibits each of the various
      phases of the distribution process does not make any one of these
      intervening acts any less an act of distribution than the final step
      in the process.
Id. at 1168.
      Fuentes-Oyervides cites two of this Circuit’s precedents as alleged support
for the proposition that transportation and other activities in a state statute
cannot be classified as drug trafficking offenses because transportation is not a
drug trafficking offense.   One of the cited precedents concerned whether a
defendant’s California state conviction qualified as a drug trafficking offense
under the Guidelines. Garza-Lopez, 410 F.3d 268. We found that the conviction
did not so qualify because the statute criminalized, among other things, the
transportation of a controlled substance for personal use. Id. at 274-75. In

                                        4
                                 No. 07-41007

contrast, the Ohio statute here does not criminalize mere personal use
possession; it requires a level of understanding that the drugs are for sale or
resale.
      In the other precedent on which Fuentes-Oyervides relies, the state
statute punished mere possession or transportation without intent to distribute.
United States v. Lopez-Salas, 513 F.3d 174 (5th Cir. 2008). We concluded that
a state’s presumption of intent to distribute – based upon the statute’s
requirement that a large amount of drugs be transported – was not sufficient
evidence of criminal intent to distribute for purposes of the Guidelines’ “drug
trafficking offense” adjustment. Id. at 180. The state statute at issue here
explicitly includes a mens rea requirement concerning distribution.
      Accordingly, we agree with the Tenth Circuit’s understanding that an
individual who prepares for shipment, ships, transports, delivers, prepares for
distribution, or distributes a controlled substance while he knows or should
know that the substance is intended for sale, commits an act of distribution
under the Guidelines. The district court did not err by incorporating a twelve-
level “drug trafficking offense” enhancement to Fuentes-Oyervides’s sentence.
      AFFIRMED.




                                       5
