     Case: 13-41068       Document: 00513106364         Page: 1     Date Filed: 07/07/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                     No. 13-41068
                                   Summary Calendar
                                                                          United States Court of Appeals
                                                                                   Fifth Circuit

                                                                                 FILED
                                                                              July 7, 2015
UNITED STATES OF AMERICA,
                                                                            Lyle W. Cayce
                                                                                 Clerk
                                                  Plaintiff - Appellee

v.

JULIO SARABIA-BALTAZAR, also known as Jose Noel Mercado,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 7:13-CR-761-1


Before JOLLY, BARKSDALE, and OWEN, Circuit Judges.
PER CURIAM: *
       Julio    Sarabia-Baltazar        challenges      his    57-month       sentence              of
imprisonment, imposed following his guilty plea to illegal reentry following
deportation, in violation of 8 U.S.C. § 1326. He contends the district court
erroneously applied a 16-level enhancement pursuant to Sentencing Guideline
§ 2L1.2(b)(1)(A)(i), based on his 2010 Oklahoma-state convictions for:
conspiracy to possess, with intent to distribute, cocaine; and possession, with


       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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.
    Case: 13-41068     Document: 00513106364      Page: 2    Date Filed: 07/07/2015


                                  No. 13-41068

intent to distribute, cocaine.      Sarabia asserts the Oklahoma statutory
provisions under which he was convicted are broader than the generic
contemporary definition of “drug trafficking offense” in the commentary to
Guideline § 2L1.2 because they criminalize the distribution of cocaine without
remuneration. U.S.S.G. § 2L1.2 cmt. n.1(B)(iv) (“‘Drug trafficking offense’
means an offense under federal, state, or local law that prohibits the
manufacture, import, export, distribution, or dispensing of, or offer to sell a
controlled substance (or a counterfeit substance) or the possession of a
controlled substance (or a counterfeit substance) with intent to manufacture,
import, export, distribute, or dispense.”).
      Although post-Booker, the Guidelines are advisory only, and a properly
preserved objection to an ultimate sentence is reviewed for reasonableness
under an abuse-of-discretion standard, the district court must still properly
calculate the advisory Guidelines-sentencing range for use in deciding on the
sentence to impose. Gall v. United States, 552 U.S. 38, 51 (2007). In that
respect, for issues preserved in district court, its application of the Guidelines
is reviewed de novo; its factual findings, only for clear error. E.g., United States
v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008).
      As Sarabia concedes, because he did not object in district court to the
Guideline § 2L1.2(b)(1)(A)(i) enhancement, review is only for plain error. E.g.,
United States v. Krout, 66 F.3d 1420, 1434 (5th Cir. 1995). To demonstrate
plain error, Sarabia must show a forfeited error that is clear or obvious and
that affects his substantial rights. Puckett v. United States, 556 U.S. 129, 135
(2009). If he makes such a showing, we have the discretion to correct the error,
but only if it seriously affects the fairness, integrity, or public reputation of
judicial proceedings. Id.




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                                No. 13-41068

      Sarabia fails to show the requisite clear or obvious error.          The
enhancement under Guideline § 2L1.2(b)(1)(A)(i) for Sarabia’s prior conviction
for a drug-trafficking offense is warranted, regardless of whether the
conviction under Oklahoma law required proof of remuneration or commercial
activity. See United States v. Martinez-Lugo, 782 F.3d 198, 204-05 (5th Cir.
2015).
      AFFIRMED.




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