     Case: 16-20417      Document: 00514102755         Page: 1    Date Filed: 08/04/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT

                                                                         United States Court of Appeals

                                    No. 16-20417
                                                                                  Fifth Circuit

                                                                                FILED
                                  Summary Calendar                         August 4, 2017
                                                                           Lyle W. Cayce
UNITED STATES OF AMERICA,                                                       Clerk


                                                 Plaintiff–Appellee,

v.

LEONEL FAJARDO-GALVAN, also known as Leonel Galvan Fajardo, also
known as Leonel Fajardo Galvan,

                                                 Defendant–Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:16-CR-64-1


                         ON PETITION FOR REHEARING
Before HIGGINBOTHAM, PRADO, and HAYNES, Circuit Judges.
PER CURIAM:*
       Leonel Fajardo-Galvan’s motion for panel rehearing is GRANTED and
the opinion previously filed in this case is withdrawn. This opinion is
substituted therefor. Fajardo-Galvan’s petition for rehearing en banc is
DENIED.



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 16-20417

      Fajardo-Galvan appeals the 23-month sentence imposed after his
conviction for unlawful presence in the United States following a previous
deportation subsequent to an aggravated felony conviction in violation of 8
U.S.C. §§ 1326(a) and (b)(2). We AFFIRM.
I.    Application of U.S.S.G. § 2L1.2(b)(1)(B)
      Fajardo-Galvan claims that the district court plainly erred in applying a
12-level enhancement pursuant to U.S.S.G. § 2L1.2(b)(1)(B) based on his 2007
conviction for possession of cocaine with intent to sell or deliver. He argues
that this conviction did not qualify as a felony drug trafficking offense because
North Carolina’s sentencing scheme precluded a sentence of more than one
year in prison. At sentencing, counsel for Fajardo-Galvan affirmatively
conceded that the 12-level enhancement was proper based on current case law
and that the Guidelines range was correctly calculated; consequently, the
Government argues that he invited any error. Although the Government’s
language is persuasive, see United States v. Rodriguez, 602 F.3d 346, 350–51
(5th Cir. 2010), we need not consider this issue as Fajardo-Galvan’s argument
fails under the less stringent plain error standard, see United States v.
Fernando-Cusco, 447 F.3d 382, 384 (5th Cir. 2006).
      The district court applied a 12-level enhancement for a prior “felony drug
trafficking offense for which the sentence imposed was 13 months or less.”
U.S.S.G. § 2L1.2(b)(1)(B) (2015). The Guidelines commentary defines a “felony”
as “any federal, state, or local offense punishable by imprisonment for a term
exceeding one year.” Id. § 2L1.2 cmt. n.2. The relevant offense in this case was
a North Carolina conviction for possession of cocaine with intent to deliver. See
N.C. Gen. Stat. § 90-95. Under North Carolina’s sentencing scheme, the
theoretical maximum punishment for this offense was 30 months. See id.
§ 15A-1340.17 (2007). But this maximum only applied if: (1) the defendant’s



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                                  No. 16-20417

criminal history reached a certain level; and (2) there were aggravating
circumstances. See United States v. Simmons, 649 F.3d 237, 240–41 (4th Cir.
2011) (en banc) (explaining North Carolina’s sentencing scheme). Taking into
account Fajardo-Galvan’s record, the maximum sentence he could have
received for this offense was 10 months. Thus, Fajardo-Galvan argues that he
was not convicted of a “felony” within the meaning of § 2L1.2(b)(1)(B).
      Although we have rejected this argument in the past, United States v.
Colin-Fajardo, 278 F. App’x 340, 341–42 (5th Cir. 2008); United States v.
Cedillos, 191 F. App’x 322, 323–24 (5th Cir. 2006), our decisions were based on
the Fourth Circuit’s opinion in United States v. Harp, 406 F.3d 242 (4th Cir.
2005), which held that “to determine whether a conviction is for a crime
punishable by a prison term exceeding one year, . . . we consider the maximum
aggravated sentence that could be imposed for that crime upon a defendant
with the worst possible criminal history.” Id. at 246. Harp has since been
overruled and Fajardo-Galvan’s position adopted by the Fourth Circuit.
Simmons, 649 F.3d at 240–41. As Fajardo-Galvan points out, Simmons is the
logical outcome of the U.S. Supreme Court’s decisions in Carachuri-Rosendo v.
Holder, 560 U.S. 563 (2010), and United States v. Rodriguez, 553 U.S. 377
(2008).
       Our Court has encountered Fajardo-Galvan’s argument on several
occasions since the Fourth Circuit reversed course in Simmons. First, in United
States v. Castro-Magama, 465 F. App’x 370 (5th Cir. 2012), we held that it was
not plain error to follow Harp and the Fifth Circuit cases based thereon. Id. at
372 (“[W]e cannot say, in light of the ‘legal landscape,’ that the district court’s
application of the § 2L1.2(b)(1)(B) enhancement was clear or obvious error.”
(quoting United States v. Rodriguez-Parra, 581 F.3d 227, 230 (5th Cir. 2009))).
More recently, however, this Court has granted several unopposed motions to



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vacate and remand for resentencing based on Simmons. See United States v.
Loredo-Mendez, 638 F. App’x 423 (5th Cir. 2016) (unpublished); United States
v. Pulido-Lopez, No. 14-40929 (5th Cir. Nov. 18, 2014) (unpublished order);
United States v. Garcia Duarte, No. 14-40516 (5th Cir. Nov. 4, 2014)
(unpublished order); United States v. Zacarias-Lopez, 583 F. App’x 354 (5th
Cir. 2014) (unpublished). In Loredo-Mendez, we noted that an enhancement
under § 2L1.2(b)(1)(B) is improper if the defendant’s North Carolina conviction
was not punishable by imprisonment for a term exceeding one year. 638 F.
App’x at 424. These cases certainly evince an evolution in the legal landscape
on this issue: to determine whether a predicate North Carolina conviction is a
felony, courts look at the maximum sentence a particular defendant faced
under the sentencing scheme.
      Assuming without deciding, however, that the district court’s application
of the enhancement was clear error, we affirm Fajardo-Galvan’s sentence. On
plain error review, we reverse “only if the error seriously affects the fairness,
integrity, or public reputation of the judicial proceedings.” United States v.
Wikkerink, 841 F.3d 327, 338 (5th Cir. 2016). Absent the error, Fajardo-Galvan
would have been subject to an 8-level enhancement under U.S.S.G. §
2L1.2(b)(1)(C) for his 2007 conviction, resulting in a sentencing range of 18 to
24 months. Despite considering a Guidelines range of 30 to 37 months, the
district court granted a significant downward variance—to 23 months—
because Fajardo-Galvan had no violent criminal history and the criminal
history he did have was tied to drug addiction. Still, the court expressed its
opinion that Fajardo-Galvan’s requested sentence of 15 months was “too little”
and that the 23-month sentence would adequately sanction him and deter
future criminal behavior. On these facts, we find that the district court’s error




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does not seriously affect the fairness, integrity, or public reputation of judicial
proceedings.
II.    Aggravated Felony Under 8 U.S.C. § 1326(b)(2)
       Fajardo-Galvan also argues that the district court erred in denying his
request that the judgment reflect that he was convicted pursuant to
§ 1326(b)(1) because the indictment was ambiguous as to whether he possessed
marijuana or cocaine, and a marijuana conviction would not support a finding
that he had committed an aggravated felony within the meaning of
§ 1326(b)(2). Fajardo-Galvan concedes that a conviction for possession of
cocaine with intent to sell or deliver qualifies as an aggravated felony. Given
the documentary evidence in the record, we find no error in the district court’s
conclusion that his prior North Carolina conviction involved cocaine and that
the indictment’s reference to marijuana was a typographical error. See United
States v. Morrison, 713 F.3d 271, 279 (5th Cir. 2013); United States v. Neri-
Hernandes, 504 F.3d 587, 591–92 (5th Cir. 2007).
       Accordingly, the judgment of the district court is AFFIRMED.




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