     Case: 16-50033   Document: 00513861410        Page: 1   Date Filed: 02/02/2017




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

                                    No. 16-50033                          FILED
                                                                   February 2, 2017
                                                                     Lyle W. Cayce
UNITED STATES OF AMERICA,                                                 Clerk

             Plaintiff - Appellee

v.

JOEL HUMBERTO RENTERIA-MARTINEZ,

             Defendant - Appellant




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


Before JOLLY, SMITH, and PRADO, Circuit Judges.
PER CURIAM:

      Joel   Humberto     Renteria-Martinez        appeals   the   district          court’s
application of a 16-level sentence enhancement under § 2L1.2(b)(1)(A)(i) of the
United States Sentencing Guidelines, based on a previous Texas state
conviction that the district court found to be a drug trafficking offense.
Although the state court judgment for the previous conviction indicated that
Renteria-Martinez was convicted of simple possession of cocaine, other state
court documents related to the previous conviction include the language “with
intent to deliver,” indicating a drug trafficking offense. Renteria-Martinez did
not object to the Pre-Sentence Report (“PSR”), which characterized his
previous offense as a “drug trafficking offense.” Thus, although the district
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judge erred in applying the 16-level sentence enhancement, we apply plain
error review and AFFIRM.
                                        I.
        Renteria-Martinez pleaded guilty to attempted illegal reentry into the
United States following deportation in violation of 8 U.S.C. § 1326. His PSR
assessed a base offense level of 8. It then applied a 16-level enhancement based
on a previous “drug trafficking offense” under U.S.S.G. § 2L1.2(b)(1)(A)(i). The
PSR described the 2000 cocaine conviction in Texas state court as a “felony
conviction for the drug trafficking offense, Possession of a Controlled
Substance with Intent to Deliver Cocaine 4 Grams or More but Less Than 200
Grams.” Such an offense triggered the 16-level enhancement. A three-level
reduction for acceptance of responsibility caused Renteria-Martinez’s total
offense level to be 21. Coupled with a criminal history category of IV, the total
offense level yielded a guideline imprisonment range of 57 to 71 months.
Renteria-Martinez did not object to the PSR or to the guidelines range. The
district judge adopted the findings of the PSR and sentenced Renteria-
Martinez to 57 months of imprisonment, which was to be followed by three
years of supervised release. Renteria-Martinez timely appealed, challenging
for the first time the district court’s imposition of the 16-level sentence
enhancement.
                                       II.
        Because Renteria-Martinez did not object to the drug-trafficking
sentence enhancement in the district court, we review for plain error. United
States v. Hernandez, 690 F.3d 613, 620 (5th Cir. 2012). Plain error review
involves four prongs. Puckett v. United States, 556 U.S. 129, 135 (2009). They
are:
        First, there must be an error or defect—some sort of “[d]eviation
        from a legal rule”—that has not been intentionally relinquished or

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                                 No. 16-50033
      abandoned . . . by the appellant. Second, the legal error must be
      clear or obvious, rather than subject to reasonable dispute. Third,
      the error must have affected the appellant’s substantial rights,
      which in the ordinary case means he must demonstrate that it
      “affected the outcome of the district court proceedings.” Fourth
      and finally, if the above three prongs are satisfied, the court of
      appeals has the discretion to remedy the error—discretion which
      ought to be exercised only if the error “‘seriously affect[s] the
      fairness, integrity or public reputation of judicial proceedings.’”
Puckett, 556 U.S. at 135 (alteration in original) (citations omitted) (quoting
United States v. Olano, 507 U.S. 725, 732–33, 736 (1993)).

                                         III.
                                         A.

      Section 2L1.2(b)(1)(A)(i) of the Sentencing Guidelines allows for a 16-
level enhancement if the defendant was previously deported following a
conviction “for a felony that is (i) a drug trafficking offense for which the
sentence imposed exceeded 13 months.” U.S.S.G. § 2L1.2(b)(1)(A)(i). The
Commentary notes define “drug trafficking offense” in pertinent part as an
offense that “prohibits . . . the possession of a controlled substance (or a
counterfeit substance) with intent to manufacture, import, export, distribute,
or dispense.” § 2L1.2 cmt. n.1(B)(iv).

                                         B.
      Renteria-Martinez contends that the district judge erred in applying the
16-level drug trafficking enhancement based on his 2000 Texas state court
conviction.   To support his argument, he points to the 2000 state court
judgment, which indicates that Renteria-Martinez was convicted of “unlawful
possession of a controlled substance to wit: cocaine.” Possession alone does not
equate to drug trafficking. United States v. Sarabia-Martinez, 779 F.3d 274,
276–77 (5th Cir. 2015). Further, the Texas judgment provides that the offense
was second-degree; Renteria-Martinez argues that this description is
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consistent with a conviction for simple possession under Texas law, not for
possession with intent to deliver.
      Section 481.115(d) of the Texas Health & Safety Code provides that a
drug possession offense is “a felony of the second degree if the amount of the
controlled substance possessed is, by aggregate weight, . . . four grams or more
but less than 200 grams.” TEX. HEALTH & SAFETY CODE ANN. § 481.115(d)
(West 2015). Possession of a controlled substance in the amount of four to 200
grams is a felony in the first degree, however, if it is possessed “with intent to
deliver.”   § 481.112(d). Renteria-Martinez argues that because the Texas
judgment defined the offense as a second-degree offense for unlawful
possession of cocaine, and because the judgment omitted any language
regarding an “intent to deliver,” the Texas cocaine conviction does not meet the
definition of “drug trafficking offense” in the Sentencing Guidelines.
      The Government argues in response that no error occurred because the
2000 Texas state court offense was possession of cocaine with intent to deliver.
The Government points to a number of state court documents that support this
conclusion: the docket sheet, incorporating by reference the indictment;
Renteria’s judicial confession; and a motion by the Government to reduce
Renteria’s charge. It is undisputed that the only document that indicates a
crime other than an offense “with intent to deliver” is the judgment itself.
Moreover, a handwritten note included with the judgment provides, “All other
docs. (except judgment) indicate w/int. to deliver.” The identity of the writer
of the note is not apparent. Thus, the Government contends, the description
of the offense of conviction on the judgment is a scrivener’s error, and the 2000
Texas state court conviction was properly characterized as a drug trafficking
offense by the district court.




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                                 No. 16-50033
                                      C.
      In our plain error analysis, we first determine whether an error occurred.
In doing so, we may look to “the record as supplemented on appeal.” United
States v. Wikkerink, 841 F.3d 327, 332 (5th Cir. 2016). Although the docket
and Renteria-Martinez’s judicial confession were not before the district court,
we granted an unopposed motion to supplement the record with these
documents and may therefore consider them.
      Notwithstanding the uniform inconsistency of the related state court
documents, we find that the judgment is more probative of conviction because
it represents the final determination in the case and bears the judge’s
signature. Moreover, § 2L1.2(b)(1)(A) of the Sentencing Guidelines references
a “conviction” rather than a charge or guilty plea. Here, the conviction was for
“possession of a controlled substance to wit: cocaine” in the second degree. To
be sure, however, even if the conviction had included the language “possession
with intent to deliver,” it would not necessarily change the outcome here; we
recently held that a conviction under Section 481.112(a) of the Texas Health &
Safety Code, which includes the language “intent to deliver,” does not
constitute a “controlled substance offense” under the Guidelines when a
categorical approach analysis is applied. United States v. Tanksley, No. 15-
11078, 2017 WL 213835, at *7 (5th Cir. Jan. 18, 2017). In any event, the
district court erred in applying the 16-level drug trafficking sentence
enhancement based on a previous conviction for which the final judgment does
not fit the criteria for a drug trafficking offense under the Sentencing
Guidelines.
      For the purposes of the plain error analysis, we pretermit a decision
regarding the second and third prongs and assume arguendo that Renteria-




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                                      No. 16-50033
Martinez has shown that the error was “clear or obvious” and that it affected
his substantial rights. 1
       Even assuming arguendo that Renteria-Martinez has satisfied the first
three prongs of the plain error analysis, we halt at the fourth prong and decline
to exercise our discretion to remedy the district court’s error. Under the fourth
prong of the plain error analysis, such discretion ought only to be exercised
when “the error seriously affect[s] the fairness, integrity or public reputation
of judicial proceedings.” United States v. Escalante-Reyes, 689 F.3d 415, 419
(5th Cir. 2012) (en banc) (alteration in original) (quoting Puckett, 556 U.S. at
135). We further recognize that the errors for which reversal on the fourth
prong is appropriate include “ones that ‘would shock the conscience of the
common man, serve as a powerful indictment against our system of justice, or
seriously call into question the competence or integrity of the district judge.’”
United States v. Segura, 747 F.3d 323, 331 (5th Cir. 2014) (quoting Escalante-
Reyes, 689 F.3d at 435).
       Here, every document in the record related to the 2000 Texas state court
conviction includes the language “with intent to deliver” except the judgment.
The PSR findings adopted by the district court described the 2000 Texas state
conviction as possession “with intent to deliver.” 2 Renteria-Martinez’s judicial
confession in the 2000 offense also included the language “with intent to
deliver,” as did the state court docket. Although the state court judgment of



       1 The Government conceded that the application of the 16-level enhancement affected
Renteria-Martinez’s substantial rights. Absent the 16-level enhancement, Renteria-
Martinez would have received an 8-level enhancement for a separate drug trafficking offense,
which would have yielded a guideline sentencing range of 24 to 30 months imprisonment.
The difference, therefore, is one of at least 27 months.
       2 The PSR description of the 2000 Texas conviction also noted that the total weight of

the cocaine found in Renteria-Martinez’s vehicle was 4,437.3 grams and that he was
originally charged with “Possession with Intent to Deliver 400 grams or More of Cocaine”
before the State moved to reduce the offense.
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his conviction omitted the language “with intent to deliver,” it is clear that the
offenses underlying the conviction implicated the act of delivery of a controlled
substance. More important, however, Renteria-Martinez showed proclivities
of recidivistic behavior; at the time of the 2000 offense, he was on probation for
a 1996 marijuana conviction. We have declined to exercise our discretion
under plain error review in other cases involving recidivistic behavior. See,
e.g., United States v. Davis, 602 F.3d 643, 650–51 (5th Cir. 2010) (declining to
exercise discretion in factual situation involving a defendant who “violated his
supervised release only five months into a five-year sentence”).
      The district court’s error here is neither an “indictment against our
system of justice” nor an error that “shock[s] the conscience of the common
man” or undermines the integrity of the judicial proceedings. We therefore
decline to exercise discretion.
                                       IV.
      In sum, we decline to exercise discretion to remedy the district court’s
error under the fourth prong of plain error review and AFFIRM.




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