     Case: 15-10466      Document: 00513361578         Page: 1    Date Filed: 01/29/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                            United States Court of Appeals
                                                                                     Fifth Circuit
                                    No. 15-10466                                   FILED
                                  Summary Calendar                          January 29, 2016
                                                                              Lyle W. Cayce
                                                                                   Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

HERIBERTO ESQUIVAL-CENTENO,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 4:14-CR-243


Before WIENER, HIGGINSON, and COSTA, Circuit Judges.
PER CURIAM: *
       Following Heriberto Esquival-Centeno’s guilty plea to reentering the
United States after deportation, the district court imposed a 46-month within-
guidelines sentence, which included a 16-level enhancement under U.S.S.G.
§ 2L1.2(b)(1)(A)(i) because Esquival-Centeno’s deportation had followed his
Arizona conviction for attempted transport of cocaine for sale. See ARIZ. REV.
STAT. ANN. § 13-3408(A)(7). On appeal, Esquival-Centeno concedes that 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 15-10466

Arizona offense of attempted transport of cocaine for sale qualifies as a “drug
trafficking offense” for purposes of § 2L1.2(b)(1)(A)(i). See United States v.
Martinez-Lugo, 782 F.3d 198, 201-205 (5th Cir. 2015), cert. denied, 2015 WL
3867557 (Nov. 30, 2015) (No. 14-10355).       He contends, however, that the
records proffered by the Government were insufficient to prove that he had
been convicted specifically of attempted transport of cocaine, that offense falls
within a statute the parties concede is divisible.
      We review the district court’s decision to apply a 16-level enhancement
under § 2L1.2(b) de novo. See United States v. Gutierrez-Ramirez, 405 F.3d
352, 355-56 (5th Cir. 2005).       Because Esquival-Centeno concedes that
attempted transport of cocaine for sale constitutes a “drug trafficking offense”
under the categorical approach of Taylor v. United States, 495 U.S. 575, 602
(1990), the sole question is whether, applying a modified categorical approach
to the Arizona statute in question, we are able to ascertain which of the
divisible elements formed the basis of Esquival-Centeno’s pre-deportation
conviction. See Descamps v. United States, 133 S. Ct. 2276, 2281, 2293 (2013).
In ascertaining the precise basis of the prior conviction, we may consider the
“charging document, written plea agreement, transcript of plea colloquy, and
any explicit factual finding by the trial judge to which the defendant assented.”
Shepard v. United States, 544 U.S. 13, 16 (2005).
      Esquival-Centeno was charged generally under Arizona Revised Statute
§ 13-3408(A)(7), which prohibits transporting for sale, importing, selling,
transferring, or offering to transport for sale, import, sell, or transfer, any
narcotic drug. The state court judgment, however, plainly and unambiguously
specifies his offense of conviction as “attempted transportation of [cocaine] for
sale,” thus reflecting “a conscious judicial narrowing of the charging
document.” Gutierrez-Ramirez, 405 F.3d at 357-58 (internal quotation marks



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                                 No. 15-10466

and citation omitted). While Esquival-Centeno argues that the judgment’s
allusion to “transportation” may simply be a short-hand reference to § 13-
3408(A)(7) as a whole, the judgment is a Shepard-approved document that is
binding in this circumstance.
         Also instructive is the State’s promise in Esquival-Centeno’s plea
agreement to dismiss all other allegations under § 13-3408(A)(7) upon his
guilty plea to the attempted transport charge. As with the state judgment, he
challenges the language of the plea agreement as nonspecific boilerplate, but
this contention also fails under the principles that guide the modified
categorical approach.
         Finally, the plea hearing transcript reflects Esquival-Centeno’s
confirmation of the factual basis of his prior conviction, which involved his
driving a car containing cocaine packaged for sale from Arizona to California.
Contrary to Esquival-Centeno’s assertion, a district court, in ascertaining the
relevant conduct that distinguishes one divisible offense from another, may
refer to the “transcript of colloquy between judge and defendant in which the
factual basis for the plea was confirmed by the defendant.” Shepard, 544 U.S.
at 26.
         The Shepard documents suffice to show that Esquival-Centeno’s pre-
deportation conviction was for the specific offense of attempted transport of
cocaine for sale, which qualifies as a “drug trafficking offense” under
§ 2L1.2(b)(1)(A)(i). See Gutierrez-Ramirez, 405 F.3d at 358; Martinez-Lugo,
782 F.3d at 201-05. Consequently, the district court did not err in imposing a
16-level enhancement in this case. The judgment is AFFIRMED.




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