     Case: 10-20503     Document: 00511561508         Page: 1     Date Filed: 08/04/2011




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

                                                                            FILED
                                                                           August 4, 2011
                                     No. 10-20503
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

CESAR OLIVAS CASTILLO, also known as Cesar Olivas, also known as Olivas
Ricardo, also known as Cesar Olivas-Castillo,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:10-CR-189-1


Before BARKSDALE, STEWART, and PRADO, Circuit Judges.
PER CURIAM:*
        Cesar Olivas Castillo pleaded guilty to one count of illegal reentry following
deportation, in violation of 8 U.S.C. § 1326(a), (b)(2). The district court enhanced
Castillo’s offense level, pursuant to Sentencing Guideline § 2L1.2(b)(1)(B)
(enhancement for a prior drug trafficking offense), based upon Castillo’s prior
New Mexico conviction for trafficking a controlled substance by possession, with
intent to distribute, cocaine. The court imposed a 30-month sentence.


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 10-20503

      Castillo contests that enhancement, claiming his New Mexico conviction
is not a “drug trafficking offense” for § 2L1.2(b)(1)(B)’s purposes because New
Mexico law allows the “intent to distribute” element to be inferred from the drug
quantity involved.
      Although post-Booker, the Guidelines are advisory only, and an ultimate
sentence is reviewed for reasonableness under an abuse-of-discretion standard,
the district court must still properly calculate the Guidelines sentencing range
for use in deciding on the sentence to impose. Gall v. United States, 552 U.S. 38,
49-51 (2007). In that respect, 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); United States v. Villegas, 404 F.3d
355, 359 (5th Cir. 2005).
      Under the categorical approach set forth in Taylor v. United States, 495
U.S. 575, 602 (1990), a district court must look to the elements of a prior offense,
not the facts underlying the conviction, when classifying that offense for
sentence-enhancement purposes. United States v. Garza-Lopez, 410 F.3d 268,
273 (5th Cir. 2005). In a “narrow range of cases”, such as when determining
whether a prior conviction was a “drug trafficking offense”, a district court may
look beyond the elements of the offense. Id. (citation and internal quotation
marks omitted). Even where the court looks beyond those elements, however,
it is “not free to consider any facts, but may consider the statutory definition of
the offense, the charging paper, and the jury instructions”. Id. A district court
may not rely solely on the presentence investigation report’s characterization of
the prior offense in applying an enhancement. Id. at 274.
      In United States v. Lopez-Salas, 513 F.3d 174, 180 (5th Cir. 2008), our
court held: to qualify as a drug-trafficking offense under the Guidelines, the
relevant statute must include “intent to distribute” as an element; and, that
element must be proven and not implied. Castillo’s reliance on Lopez-Salas is
misplaced, because the statute at issue includes “intent to distribute” as an

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                                No. 10-20503

element of the offense that must be proven. See N.M. STAT. ANN. 1978 § 30-31-
20(A)(3) (1978).
      AFFIRMED.




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