                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 03-1577
                                   ___________

United States of America,               *
                                        *
             Appellee,                  *
                                        * Appeal from the United States
      v.                                * District Court for the Western
                                        * District of Missouri.
Rafael Arrieta-Buendia,                 *
                                        *
             Appellant.                 *
                                   ___________

                             Submitted: March 12, 2004
                                Filed: June 17, 2004
                                 ___________

Before RILEY and MELLOY, Circuit Judges, and ERICKSON,1 District Judge.
                            ___________

RILEY, Circuit Judge.

       Rafael Arrieta-Buendia (Arrieta-Buendia) pled guilty to unlawful reentry into
the United States after deportation and after conviction for an aggravated felony, in
violation of 8 U.S.C. § 1326(a)(2) and (b)(2) (2000). The district court2 sentenced
Arrieta-Buendia to 46 months imprisonment and three years supervised release.


      1
       The Honorable Ralph R. Erickson, United States District Judge for the District
of North Dakota, sitting by designation.
      2
      The Honorable Dean Whipple, Chief Judge, United States District Court for
the Western District of Missouri.
Arrieta-Buendia appeals the sentence, contending the district court erroneously
applied a 16-level sentence enhancement pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(i)
(2002). We affirm.

I.     BACKGROUND
       After Arrieta-Buendia pled guilty to unlawful reentry into the United States
following deportation after conviction for an aggravated felony, the United States
Probation Office prepared a Presentence Investigation Report (PSR). The
government objected to the PSR’s recommended 8-level enhancement pursuant to
U.S.S.G. § 2L1.2(b)(1)(C), which states, “[i]f the defendant previously was deported,
or unlawfully remained in the United States, after–(C) a conviction for an aggravated
felony, increase by 8 levels.” The government argued “the defendant is eligible for
a 16 level enhancement under paragraph 15 of the [PSR] due to his prior drug
trafficking offense which is set forth in paragraph 26.” Paragraph 26 of the PSR
reported Arrieta-Buendia, while represented by counsel, had been convicted on
January 20, 1998, for transportation of a controlled substance (methamphetamine) in
San Bernardino, California.

       Responding to the government’s objection to the recommended 8-level
sentence enhancement for Arrieta-Buendia’s California conviction, the probation
officer stated, “[u]pon receipt and review of further documentation from the probation
office in the Central District of California, the probation officer concurs with the
government’s guideline calculations. Page 5, paragraph 15 of the [PSR] has been
changed to reflect that the offense level is increased by 16-levels pursuant to
[U.S.S.G. §] 2L1.2(b)(1)(A). This increase is appropriate because the defendant was
previously deported, after he was convicted of a felony drug trafficking offense, for
which the sentence imposed exceeded 13 months.” The final PSR, which was
submitted to the district court for sentencing, stated, “[b]ecause the defendant was
previously deported after he was convicted of a felony drug trafficking offense, for
which the sentence imposed exceeded 13 months, the offense level is increased by 16

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levels pursuant to [U.S.S.G. §] 2L1.2(b)(1)(A).” Arrieta-Buendia did not object
during the presentence investigation process to the recommended 16-level sentence,
nor did he respond to the government’s objection to an 8-level enhancement.

       At sentencing, after the district court granted Arrieta-Buendia a three-level
sentence reduction for acceptance of responsibility, the district court asked whether
there were “any other challenges to the presentence.” Arrieta-Buendia’s attorney
responded, “I have been requested by my client to raise one other objection this
morning.” Arrieta-Buendia’s attorney then stated, “Arrieta does not believe a 16 level
enhancement is appropriate for his prior felony conviction. When the . . . draft
presentence was issued, the probation officer had assessed [Arrieta-Buendia] eight
levels at that time. The Government filed an objection for the 16 levels, I did not
respond, based on my legal opinion. However, my client has informed me that he
believes that he should have been given an eight level enhancement for his prior
felony conviction.”

       The government responded: “Under the [United States Sentencing G]uidelines,
which would be [section] 2L1.2, it provides for an enhancement depending on the
type of crime, if the crime under the guideline is a drug trafficking offense, for which
a sentence exceeded 13 months, you assess 16 levels. The charge that Mr. Arrieta
pled guilty to was unlawful transportation of methamphetamine, a controlled
substance, which is a drug trafficking offense[;] . . . on that he received a four year
prison sentence in California–for that reason we believe the 16 level is appropriate.”
The probation officer agreed, stating the California statute “indicated that that is a
drug trafficking offense.” The district court overruled Arrieta-Buendia’s objection
and assessed the 16-level enhancement.

       When given a chance to speak, Arrieta-Buendia told the district court he was
not guilty of the California felony of transporting methamphetamine, but was forced
to plead guilty to that crime. Arrieta-Buendia said he did not understand why his

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prior crime affected his current crime. After informing Arrieta-Buendia his past
crime impacts his sentence for his current crime, the district court sentenced Arrieta-
Buendia to 46 months imprisonment, the low end of the Guidelines range.

       Arrieta-Buendia’s attorney filed an appeal, moved to withdraw, and filed a
brief under Anders v. California, 386 U.S. 738 (1967). Our court ordered Arrieta-
Buendia’s attorney to file an adversarial brief addressing the 16-level sentence
enhancement. Arrieta-Buendia’s attorney complied, and briefed the issue of “whether
Mr. Arrieta-Buendia’s prior California transportation of methamphetamine offense
is a ‘drug trafficking offense’ within the meaning of U.S.S.G. § 2L1.2(b)(1)(A).”

II.     DISCUSSION
        The Guidelines mandate a 16-level enhancement for violations of 8 U.S.C. §
1326 in certain circumstances: “If the defendant previously was deported, or
unlawfully remained in the United States, after–(A) a conviction for a felony that is
(i) a drug trafficking offense for which the sentence imposed exceeded 13 months;
. . . increase by 16 levels.” U.S.S.G. § 2L1.2(b)(1)(A)(i). The Guidelines define
“drug trafficking offense” as “an offense under federal, state, or local law that
prohibits the manufacture, import, export, distribution, or dispensing of a controlled
substance . . . or the possession of a controlled substance . . . with intent to
manufacture, import, export, distribute, or dispense.” Id. cmt. n.1(B)(iii). In cases
involving a conviction for an aggravated felony which is not a drug trafficking
offense or other felony identified in section 2L1.2(b)(1)(A), an 8-level enhancement
is required. Id. § 2L1.2(b)(1)(C).

      Arrieta-Buendia contends he objected at sentencing to the 16-level
enhancement, arguing his prior conviction for transportation of methamphetamine
was not a drug trafficking offense under section 2L1.2(b)(1)(A). Arrieta-Buendia
further contends the sentencing record does not establish he was convicted of a drug



                                         -4-
trafficking offense with a sentence exceeding 13 months. Therefore, Arrieta-Buendia
argues the district court erroneously assessed the 16-level sentence enhancement.

         “We review the district court’s factual findings at sentencing for clear error,
and its interpretation and construction of the sentencing guidelines de novo.” United
States v. Stanley, 362 F.3d 509, 511 (8th Cir. 2004). However, our circuit has held
numerous times “that unless a defendant objects to a specific factual allegation
contained in the PSR, the court may accept that fact as true for sentencing purposes.”
United States v. Moser, 168 F.3d 1130, 1132 (8th Cir. 1999) (collecting cases). Thus,
a defendant’s “failure to object to the PSR’s factual characterization of his conduct
. . . is dispositive.” United States v. Menteer, 350 F.3d 767, 771 (8th Cir. 2003).

       We do not agree with Arrieta-Buendia’s appellate characterization of his
objections at sentencing. Arrieta-Buendia did not attack the PSR’s specific factual
characterization of his California conviction as a drug trafficking offense, and this
failure to object to the clear and consistent characterization of his California
conviction as a drug trafficking offense is dispositive of this appeal. Arrieta-Buendia
never informed the district court he disputed the government’s and the PSR’s
characterization of his California conviction as a drug trafficking offense. Arrieta-
Buendia also never disputed he received a four-year sentence for his California
conviction. Instead, he impressed upon the district court that he was not guilty of the
prior felony conviction, asserting he was forced to plead guilty. The district court
was properly not interested in allowing Arrieta-Buendia to re-litigate his guilt for the
prior California transportation of methamphetamine offense. Instead, the district
court correctly concerned itself with determining whether to apply the 16-level
enhancement for the prior conviction of a drug trafficking offense. Given the
undisputed characterization of that conviction as a drug trafficking offense, with a
corresponding four-year sentence, we will not reverse the district court’s decision to




                                          -5-
assess the 16-level enhancement based on its finding Arrieta-Buendia was previously
convicted of a drug trafficking offense.3

III.  CONCLUSION
      Concluding the district court did not erroneously assess a 16-level
enhancement for unlawful reentry following a felony conviction for a drug trafficking
offense, we affirm the sentence imposed by the district court. We also deny as moot
the government’s motion to supplement the record on appeal.
                       ______________________________




       3
        In the interest of justice, the government moved to supplement the record on
appeal with the underlying California charging documents and 1998 conviction to
establish Arrieta-Buendia was charged with and convicted of transporting over one
kilogram of methamphetamine. Because Arrieta-Buendia never notified the district
court he was objecting to the characterization of his prior conviction as a drug
trafficking offense, the district court was well within its authority to sentence
Arrieta-Buendia based on the unchallenged PSR characterization without forcing the
government to offer additional evidence. Though the government’s supplemental
evidence shows Arrieta-Buendia was convicted of a drug trafficking offense, we need
not consider this evidence now as the issue was never presented to the district court.
Therefore, we deny the government’s motion to supplement the record on appeal.

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