     Case: 09-10958 Document: 00511293693 Page: 1 Date Filed: 11/15/2010




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

                                                 FILED
                                                                         November 15, 2010
                                     No. 09-10958
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

ADOLFO MARTINEZ-PADRON,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Northern District of Texas
                              USDC No. 4:09-CR-57-1


Before REAVLEY, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
       Adolfo Martinez-Padron (Martinez) appeals the 36-month sentence
imposed following his guilty plea conviction of illegal reentry. Martinez argues
that the district court improperly enhanced his offense level pursuant to
U.S.S.G. § 2L1.2(b)(1)(D) based on its determination that his prior Texas
conviction for cocaine possession was a felony as defined by the Sentencing
Guidelines. More specifically, Martinez contends that the district court erred
because its conclusion that his prior state conviction was for a felony offense

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-10958 Document: 00511293693 Page: 2 Date Filed: 11/15/2010

                                  No. 09-10958

relied exclusively upon the characterization of his offense in the presentence
report.
      Martinez did not object to the characterization of his prior conviction as
a felony or challenge the imposition of the four-level enhancement under
§ 2L1.2(b)(1)(D). Accordingly, we review only for plain error. United States v.
Garcia-Arellano, 522 F.3d 477, 480 (5th Cir. 2008). Our determination whether
there is error is “based on the record before us as supplemented with the
state-court documents” related to Martinez’s prior conviction. Id.
      Guideline § 2L1.2 provides for a four-level increase if the defendant has
been previously convicted of a felony offense. § 2L1.2(b)(1)(D). State-court
documents for Martinez’s prior conviction, with which the Government has
supplemented the record on appeal, show that Martinez pleaded guilty to
possession of less than one gram of cocaine, a violation of T EX. H EALTH & S AFETY
C ODE A NN. § 481.115(b). This offense is a state jail felony punishable by no less
than 180 days nor more than two years in prison. See § 481.115(b); T EX. P ENAL
C ODE A NN. § 12.35(a).    Accordingly, the offense qualifies as a “felony” for
purposes of § 2L1.2. § 2L1.2, comment. (n.2); United States v. Rivera-Perez 322
F.3d 350, 352 (5th Cir. 2003). The application of the four-level enhancement was
not error, plain or otherwise.
      AFFIRMED.




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