     Case: 13-41244        Document: 00512846684          Page: 1     Date Filed: 11/24/2014




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

                                        No. 13-41244                                   FILED
                                                                               November 24, 2014
                                                                                  Lyle W. Cayce
UNITED STATES OF AMERICA,                                                              Clerk

                                                    Plaintiff - Appellee

v.

JORGE CASTELLON-ARAGON,

                                                    Defendant - Appellant



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


Before JOLLY and JONES, Circuit Judges, and AFRICK *, District Judge.
EDITH H. JONES, Circuit Judge:
      Appellant Jorge Castellon-Aragon pled guilty to illegal reentry after
having been previously removed from the United States, in violation of
8 U.S.C. § 1326(a), (b)(2).        The PSR recommended that the Appellant’s 2012
California conviction for possession of a controlled substance for sale qualified
as a felony drug trafficking offense for which the sentence imposed was
13 months or less. Pursuant to U.S.S.G. § 2L1.2(b)(1)(B), the probation officer
recommended a 12 level adjustment based upon that conviction. With a total
offense level of 17 and a criminal history category of III, the advisory guidelines
range of imprisonment was 30–37 months. Castellon-Aragon, represented by


      *   District Judge of the Eastern District of Louisiana, sitting by designation.
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                                  No. 13-41244
the Federal Public Defender, filed no objection to the PSR. The district court
sentenced him to 30 months’ imprisonment.
     On appeal, for the first time, Appellant challenges as plain error the base
offense level enhancement deriving from the classification of his prior
conviction as a drug trafficking offense—and consequently an aggravated
felony for purposes of § 1326(b)(2). We disagree that there was plain error.
      The PSR reflected that Castellon-Aragon’s prior conviction was for
possession for sale of a controlled substance identified as methamphetamine.
Cal. Health & Safety Code § 11378. Appellant also had at least three DUI
offenses—although they were not all prosecuted—and related offenses of
driving without a license and driving with a suspended license. He had been
removed from the United States at least six times before. The FPD referred
during sentencing to letters submitted on behalf of Appellant by his friends
and family pleading for a below-guidelines sentence, but the FPD specifically
said, “No,” when asked about any challenges to the PSR calculation of his
sentence range.
      Notwithstanding his silence at sentencing, the Appellant raises two
challenges to the impact of the California offense: (1) the state statute is not a
an aggravated felony for sentencing purposes, and (2) the government failed to
offer sufficient proof under the “modified categorical approach” to show that
Appellant pled guilty to an offense involving methamphetamine. Our standard
of review for newly raised issues is that of plain error, which requires the
Appellant to show (a) error at sentencing, (b) that was “plain,” and (c) affected
his substantial rights, such that (d) this court’s failure to exercise our
discretion to correct the error would seriously affect the courts’ reputation for
fairness.   Puckett v. United States, 556 U.S. 129, 135, 129 S. Ct. 1423, 1429
(2009).


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                                  No. 13-41244
     The parties agree that § 11378, a broadly written proscription, does not
qualify as an aggravated felony for federal sentencing purposes.        See, e.g.,
United States v. Valdavinos-Torres, 704 F.3d 679 (9th Cir. 2012), cert. denied,
134 S. Ct. 1873 (2014); United States v. Sanchez-Garcia, 642 F.3d 658, 661–62
(8th Cir. 2011). A conviction for possession of methamphetamine for sale,
however, clearly qualifies as a drug trafficking offense under the guidelines
§ 2L1.2(b). United States v. Valle-Montalbo, 474 F.3d 1197, 1200–01 (9th Cir.
2006) (affirming sentence after concluding that defendant’s conviction for
methamphetamine was a drug trafficking offense under the Taylor approach,
though erroneously referring to Taylor as a categorical analysis).     According
to the Supreme Court, the “modified categorical approach” of Taylor v United
States, 495 U.S. 575, 110 S. Ct. 2143 (1990) allows the consideration of state
court documents approved in Shepard v United States, 544 U.S. 13, 125 S. Ct.
1254 (2005), as a means of parsing whether the defendant has been convicted
of a state law offense falling within federal guidelines. Appellant contends that
the state court records in this case are insufficient to prove that he pled guilty
to an offense involving methamphetamine. The government disagrees.
      Resolution of this dispute turns on how authoritative and how factually
similar is this court’s unpublished, non-precedential decision in United States
v. Lopez-Cano, 516 F.App’x 350 (5th Cir. 2013), which reversed a sentence
enhancement based on the same California statute. In Lopez-Cano, this court
reviewed an error that had been preserved in the trial court. This court held
that certain California court documents—submitted in support of the
necessary finding that the defendant pled guilty to a violation involving a
federally controlled substance—were not Shepard-approved because they were
prepared by the court and not by a judge. Id. at 354. Moreover, the docket
sheet and case summary did not show what type of controlled substance the
conviction involved. Id. Although the complaint charged Lopez-Cano with
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                                 No. 13-41244
possession of methamphetamine, it was not a Shepard-approved document
because he ultimately pled to a subsequently issued information that failed to
specify the controlled substance.
       Based upon Lopez-Cano, Castellon-Aragon contends that the district
court here “plainly” erred by relying upon the supporting documents submitted
by the probation officer regarding his conviction. For example, the abstract of
judgment and preliminary hearing minutes are not Shepard-approved
documents because they were not signed by a judge. The only document that
refers to methamphetamine as the basis for his prosecution is the criminal
complaint, but, he asserts, there is no evidence that he was convicted pursuant
to that complaint. Accordingly, the government failed to satisfy its burden of
proof to support the § 2L1.2 adjustment with adequate California court
documents.
       The Government points out several differences between this case and
Lopez-Cano.    Lopez-Cano, of course, is unpublished and therefore non-
precedential in this circuit; however, it may function as persuasive authority.
United States v. Medina-Torres, 703 F.3d 770, 777 (5th Cir. 2012) (“[I]t is not
always necessary that a rule of decision be announced in a prior published
decision in order for this Court to find it persuasive in reaching a decision.”).
More important, however, is that the state court records here are different from
those submitted in Lopez-Cano.      The criminal complaint against Castellon-
Aragon alleged a violation of § 11378 explicitly based on methamphetamine.
Under Shepard, a complaint may be a proper charging document for purposes
of narrowing the scope of the conviction. Shepard, 544 U.S. at 26, 125 S. Ct.
at 1263. Unlike in Lopez-Cano, there is no indication that the complaint was
superseded by an information or indictment. To the contrary, there is a plea
of nolo contendere and all the marks on the relevant forms indicate the
defendant waived his rights and pled pursuant to an expedited “Early
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                                 No. 13-41244
Resolution” procedure.     The Government contends persuasively that the
charging document was the complaint alone, which sufficiently narrowed the
scope of conviction to one within the relevant U.S.S.G. enhancement.
      Appellant urges us to reject this common-sense inference from the state
files because the Government had the burden at sentencing to produce
Shepard-compliant documents. Castellon-Aragon, however, never gave the
Government or the probation officer reason to believe during the sentencing
proceedings that he challenged their proof. The meaning and consequences of
California records raise potential factual and legal questions. In Lopez-Cano,
for instance, this court undertook a rather lengthy discussion of state
procedures because the issues were properly preserved and raised on appeal.
      Dealing with preserved error in Lopez-Cano leads to a considerably
different posture of that case on appeal as opposed to the instant plain error
review.   First, this court has repeatedly stated that questions of fact are not
reviewable for plain error. See, e.g., United States v. Chung, 261 F.3d 536, 539
(5th Cir. 2001) (“[Q]uestions of fact capable of resolution by the district court
can never constitute plain error.”).       To the extent that interpreting the
California procedural posture of Appellant’s prior conviction involves factual
questions about the defendant’s involvement as reflected on the relevant
documents, we cannot find plain error.         Second, to the extent that the
intricacies of California criminal procedures are involved—the Government
states that an indictment or information are unnecessary if the defendant
waives those rights and simply pleads to the complaint—orderly federal
processes are being up-ended in asking this appellate court to investigate those
procedures in the first instance. Had defense counsel presented his objections
to the trial court, the inquiry here would be far different.         Among the
possibilities is that the probation office or the Government might have had the
opportunity to produce documents to the satisfaction of defense counsel
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                                 No. 13-41244
verifying the methamphetamine conviction. At least, both parties would have
researched and offered the courts their best interpretation of California
criminal procedure.
      As it is, Appellant’s argument boils down to the proposition that the
district court “plainly erred” in failing to require the Government to prove a
negative: that no superseding charging instrument was filed such that
Castellon-Aragon might have pled guilty to an offense that didn’t specify
methamphetamine and therefore did not constitute a sentencing guidelines
“drug trafficking offense.” This is the only way that Appellant can claim the
benefit of Lopez-Cano.   Because, however, the state court documents before
us reasonably indicate the absence of any such document, and because the
Government cites California authority that offers support for its interpretation
of the state proceedings, we find no “plain,” “clear or obvious” error committed
by the trial court. We therefore do not reach the potential effect on Castellon-
Aragon’s substantial rights or whether we should exercise our considerable
discretion to “correct” the sentence.
      The sentence is AFFIRMED.




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