     Case: 09-11232     Document: 00511244832          Page: 1    Date Filed: 09/24/2010




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

                                                 FILED
                                                                         September 24, 2010
                                     No. 09-11232
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

LUIS ULISES ZAMORA-MELGOZA,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Northern District of Texas
                              USDC No. 6:09-CR-30-1


Before JOLLY, GARZA, and STEWART, Circuit Judges.
PER CURIAM:*
        Mexican national Luis Ulises Zamora-Melgoza (“Zamora”) appeals the 46-
month sentence he received following his guilty-plea conviction for illegal
reentry, in violation of 8 U.S.C. § 1326. He argues, for the first time on appeal,
that the district court erred both in calculating his criminal history score and in
calculating his total offense level. Because neither challenge was raised in the
district court, review is limited to plain error. See United States v. Peltier, 505
F.3d 389, 391-92 (5th Cir. 2007). To demonstrate plain error, Zamora must show

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-11232    Document: 00511244832 Page: 2         Date Filed: 09/24/2010
                                 No. 09-11232

a forfeited error that is clear or obvious and that affects his substantial rights.
See Puckett v. United States, 129 S. Ct. 1423, 1429 (2009). If he makes such a
showing, this court will correct such an error only if it seriously affects the
fairness, integrity, or public reputation of judicial proceedings. Id.
      Zamora first contends that he was incorrectly assessed two criminal
history points under U.S. S ENTENCING G UIDELINES M ANUAL (“U.S.S.G.”)
§ 4A1.2(e) (2009) for his April 1989 California drug conviction because that
conviction was too old to be counted. Although Zamora urges that the facts are
undisputed and that the issue concerns only the district court’s application of the
Guidelines, we conclude that the issue presents a factual question about the
sentencing date of the relevant offense, which question was capable of resolution
upon proper objection at sentencing and which thus cannot amount to plain
error. United States v. Lopez, 923 F.2d 47, 50 (5th Cir. 1991). Moreover, even
if clear or obvious error is assumed, the facts of this case show that the error did
not affect Zamora’s substantial rights because the sentence imposed, 46 months,
falls within the middle of the corrected sentencing range and because there is no
evidence that the district court believed the bottom of any range to be
appropriate. See United States v. Jasso, 587 F.3d 706, 713-14 (5th Cir. 2009); see
also United States v. Jones, 596 F.3d 273, 277-79 (5th Cir. 2010), petition for cert.
filed (May 5, 2010) (No. 09-10607).
      Zamora next contends that the district court erred in assessing a 16-level
increase to his base offense level, pursuant to U.S.S.G. § 2L1.2(b)(1)(A), because
the evidence was insufficient to prove that his second California drug conviction
was for a violation of C AL. H EALTH & S AFETY C ODE § 11351, a “drug trafficking
offense” within the meaning of § 2L1.2(b)(1)(A), rather than C AL. H EALTH &
S AFETY C ODE § 11352. As above, Zamora’s claim involves a fact question capable
of resolution by the district court on proper objection and thus cannot constitute
plain error. See Lopez, 923 F.2d at 50. Additionally, the record belies Zamora’s
contention, clearly establishing that, although his first drug conviction was

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                                No. 09-11232

under C AL. H EALTH & S AFETY C ODE § 11352, the second drug conviction was for
a violation of C AL. H EALTH & S AFETY C ODE § 11351, which constitutes a drug
trafficking offense warranting the 16-level enhancement. See United States v.
Palacios-Quinonez, 431 F.3d 471, 473-76 (5th Cir. 2005).
      The district court’s judgment is AFFIRMED.




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