     Case: 10-50655     Document: 00511596155         Page: 1     Date Filed: 09/08/2011




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

                                                                            FILED
                                                                        September 8, 2011
                                     No. 10-50655
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

JESUS HERRERA-ESCOBEDO, also known as Jesus Escobedo Herrera, also
known as Gonzalo Ornelas Cardona,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 3:10-CR-214-1


Before HIGGINBOTHAM, DAVIS, and ELROD, Circuit Judges
PER CURIAM:*
        Jesus Herrera-Escobedo was convicted pursuant to a guilty plea of
attempted illegal reentry after deportation and false claim of United States
citizenship.    The district court sentenced Herrera-Escobedo to 70 months
imprisonment as to the first count and 36 months imprisonment as to the second
count, to run concurrently, based on a Sentencing Guidelines range of 70 to 87
months imprisonment. In reaching that Sentencing Guidelines range, 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 10-50655


district court applied a 16-level enhancement to the defendant’s base offense
level pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(I). Herrera-Escobedo now appeals
from the sentence imposed by the district court. He raises two challenges to his
sentence on appeal. We conclude that neither challenge has merit and affirm his
sentence.
      First, Herrera-Escobedo argues that the district court erred by enhancing
his sentence pursuant to § 2L1.2(b)(1)(A)(i) based on a finding that he was
previously deported following a drug trafficking offense for which the sentence
imposed exceeded 13 months. He contends that there was insufficient evidence
before the district court to establish that his prior Texas conviction for unlawful
delivery of a controlled substance was a “drug trafficking offense” as that term
is defined in Application Note 1.B to § 2L1.2. Specifically, Herrera-Escobedo
argues that the Texas statute under which he was convicted, the former Texas
Health & Safety Code § 481.123, “can penalize one for the simple possession” of
a controlled substance – conduct that falls outside the Sentencing Guidelines’
definition of a “drug trafficking offense.” He maintains that because only the
state court judgment, and not the charging document, was attached as an exhibit
to the Pre-Sentence Report (“PSR”), the documentation that the district court
relied on when it concluded that his prior conviction qualified as a drug
trafficking offense was inadequate under Shepard v. United States.1
      It is undisputed that Herrera-Escobedo did not raise this challenge to the
sentencing enhancement in the district court. At the sentencing hearing,
Herrera-Escobedo’s counsel commented that this court “has had a problem with
. . . the drug delivery statute under Texas state law for enhancement purposes.”
But counsel conceded that the indictment in the defendant’s state case “clarifies
the issue in a way where [this court] would be satisfied that the 16-level



      1
          544 U.S. 13 (2005).

                                          2
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                                         No. 10-50655


enhancement applies.” Counsel concluded: “the information is available to the
Court that says, yeah, [the] 16-level enhancement is justified.”
       Where a defendant failed to raise an objection to a sentencing
enhancement in the district court, we review the issue for plain error.2 However,
because Herrera-Escobedo’s counsel assured the district court that the
information available to the court demonstrated that the 16-level enhancement
applied, it could be argued that Herrera-Escobedo did not merely forfeit his
objection to the sentencing enhancement, triggering plain error review,3 but
rather invited the alleged error he now raises on appeal.4 Absent manifest
injustice, a defendant may not appeal errors that he “invited or induced.”5 We
note, though, that the Government does not argue that Herrera-Escobedo is
barred from challenging the 16-level enhancement under the invited error
doctrine. “[O]ut of an abundance of caution, we will review for plain error.”6
       Even under plain error review, Herrera-Escobedo is not entitled to relief.
To satisfy the plain error standard, “the [defendant] must show an error, that is
clear or obvious, and that affected his substantial rights.”7 If those conditions
are satisfied, we may exercise our discretion to correct the error only if it
“seriously affect[s] the fairness, integrity, or public reputation of judicial
proceedings.”8

       2
           See United States v. Garza-Lopez, 410 F.3d 268, 272 (5th Cir. 2005).
       3
           See United States v. Arviso-Mata, 442 F.3d 382, 384 (5th Cir. 2006).
       4
           See United States v. Fernandez-Cusco, 447 F.3d 382, 384 (5th Cir. 2006).
       5
           United States v. Green, 272 F.3d 748, 754 (5th Cir. 2001).
       6
           Fernandez-Cusco, 447 F.3d at 384.
       7
        United States v. Andino-Ortega, 608 F.3d 305, 309 (5th Cir. 2010) (citing Puckett v.
United States, 129 S. Ct. 1423, 1429 (2009); United States v. Villegas, 404 F.3d 355, 358 (5th
Cir. 2005)).
       8
           Puckett, 129 S. Ct. at 1429 (quotation marks omitted) (alteration in original).

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      To determine whether a prior conviction qualifies as a predicate offense
under § 2L1.2, a district court must apply the categorical approach set forth in
Taylor v. United States.9 Using this approach, “a district court looks to the
elements of a prior offense, rather than to the facts underlying the conviction,
when classifying a prior offense for sentence enhancement purposes.”10 In a
“narrow range of cases,” a district court may look beyond the statutory elements
of the offense in making this determination.11 This court has held that the
determination of whether a “drug trafficking offense” was committed falls into
that narrow range of cases.12 However, under Shepard v. United States, the
additional information a district court may consider is limited to the “charging
document, written plea agreement, transcript of plea colloquy, and any explicit
factual finding by the trial judge to which the defendant assented.”13
      As an initial matter, we note that on May 5, 2011, the government filed an
unopposed motion to supplement the record with the indictment from the Texas
case at issue, which this court granted. Accordingly, that document is now part
of the record. The indictment states that the defendant “did . . . intentionally
and knowingly deliver, to wit, actually transfer a controlled substance listed in
Penalty Group 1, to wit: HEROIN.” Herrera-Escobedo has made no attempt to
argue that this description of his conduct is insufficient to establish that his
prior conviction was for a drug trafficking offense.




      9
          495 U.S. 575, 602 (1990); see Garza-Lopez, 410 F.3d at 273.
      10
           Garza-Lopez, 410 F.3d at 273.
      11
           Taylor, 495 U.S. at 602.
      12
         See Garza-Lopez, 410 F.3d at 272 (citing United States v. Rodriguez-Duberney, 326
F.3d 613 (5th Cir. 2003)).
      13
           Shepard, 544 U.S. at 16.

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                                            No. 10-50655


       Although Herrera-Escobedo emphasizes that only the state court judgment
of conviction, and not the indictment, was attached as an exhibit to the PSR, a
“state court judgment fall[s] within the scope of documents a court may consider
under Shepard.”14 Here, the state court judgment specifies that Herrera-
Escobedo’s conviction was for “UNLAWFUL DELIVERY PG 1-HEROIN.” As
this court held in United States v. Marban-Calderon,15 as of November 1, 2008,
“a [prior] Texas conviction for delivery of a controlled substance—whether by
active transfer, by constructive transfer, or by offer to sell—necessarily qualifies
as a drug trafficking offense under the Sentencing Guidelines.”16 Because both
the charging document and the state court judgment that was attached as an
exhibit to the PSR establish that Herrera-Escobedo’s prior conviction was for a
drug trafficking offense, the district court did not err in applying the 16-level
enhancement under § 2L1.2(b)(1)(A)(i) of the Sentencing Guidelines.
       Second, in light of Apprendi v. New Jersey,17 Herrera-Escobedo challenges
the constitutionality of 8 U.S.C. § 1326(b)’s treatment of prior felony and
aggravated felony convictions as sentencing factors rather than elements of the
offense that must be found by a jury. That argument is foreclosed by this court’s
holding in United States v. Pineda-Arrellano.18
       AFFIRMED.



       14
            United States v. Garcia-Arellano, 522 F.3d 477, 480 (5th Cir. 2008).
       15
            631 F.3d 210 (5th Cir. 2011).
       16
         Id. at 213; see U.S.S.G. § 2L1.2 cmt. n.1(B)(iv). Herrera-Escobedo entered his guilty
plea on April 21, 2010, and the district court sentenced Herrera-Escobedo on June 30, 2010.
       17
            530 U.S. 466 (2000).
       18
          492 F.3d 624, 625 (5th Cir. 2007) (reaffirming that Almendarez-Torres v. United
States, 523 U.S. 224, 235 (1998) remains binding precedent and stating that the argument
“that the felony and aggravated felony provisions of 8 U.S.C. § 1326(b)(1) and (b)(2) are
unconstitutional in light of Apprendi . . . . no longer serves as a legitimate basis for appeal”).

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