Case: 11-50566     Document: 00511909056         Page: 1     Date Filed: 07/03/2012




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

                                                                            FILED
                                                                            July 3, 2012
                                     No. 11-50566
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

ALFREDO FLORES JIMENEZ, also known as Alfredo Flores-Jimenez,

                                                  Defendant-Appellant


                   Appeals from the United States District Court
                         for the Western District of Texas
                             USDC No. 3:10-CR-3221-1


Before BENAVIDES, STEWART, and HIGGINSON, Circuit Judges.
PER CURIAM:*
        Alfredo Flores Jimenez, also known as Alfredo Flores-Jimenez (Flores),
appeals the sentence imposed after he pleaded guilty to attempted illegal reentry
after deportation and presenting false identification documents in connection
with that crime. He contends that his sentence was improperly increased
because his prior Virginia conviction did not meet the relevant federal definition
of a drug-trafficking offense. He argues that because the Virginia statute
criminalizes the mere giving of drugs, it is broader than the definition of drug

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 11-50566

trafficking provided by U.S.S.G. § 2L1.2, comment. (n.1(B)(iv)) and recognized
by United States v. Garza-Lopez, 

, 274 (5th Cir. 2005).
      We review only for plain error because Flores did not raise the issue in the
district court. See Puckett v. United States, 

, 135 (2009); United
States v. Rodriguez, 

, 523 (5th Cir. 2008). Flores must show an
error that is “clear or obvious, rather than subject to reasonable dispute” and
that the error affects his substantial rights; if he does so, we have discretion to
correct the error only if it seriously affects the fairness, integrity, or public
reputation of judicial proceedings. See Puckett, 556 U.S. at 135.
      To determine whether a prior offense was a drug-trafficking offense under
§ 2L1.2(b)(1)(A)(i), we look at the statutory definition of the prior offense and not
at the facts underlying the conviction. United States v. Reyes-Mendoza, 

, 166-67 (5th Cir. 2011). Nonetheless, when a statute can be violated in more
than one manner, only some of which are within the relevant federal definition,
we may look at certain state court documents to determine whether a prior
conviction meets the federal definition. Rodriguez, 523 F.3d at 524; see Shepard
v. United States, 

, 26 (2005).
      The Guidelines define a drug trafficking offense as “an offense under
federal, state, or local law that prohibits the manufacture, import, export,
distribution, or dispensing of, or offer to sell a controlled substance . . . or the
possession of a controlled substance . . . with intent to manufacture, import,
export, distribute, or dispense.” § 2L1.2, comment. (n.1(B)(iv)); see United States
v. Marban-Calderon, 

, 212-13 (5th Cir.), cert. denied, 

(2011). The Virginia statute under which Flores was convicted provides that it
is unlawful “to manufacture, sell, give, distribute, or possess with intent to
manufacture, sell, give or distribute a controlled substance or an imitation
controlled substance.” VA. CODE ANN. § 18.2-248(A) (emphasis added).
      The Government does not contest Flores’s assertion that the act of giving
drugs is outside the Guidelines definition of trafficking.           However, the

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                                 No. 11-50566

Government contends that state court documents show that Flores’ prior crime
was not for giving drugs but for drug trafficking within the relevant definition
articulated in § 2L1.2. Even if we assume without deciding that the Virginia
statute criminalizes conduct that is not drug trafficking under § 2L1.2, Flores
nonetheless fails to show a clear or obvious error in his sentence increase.
      The sentencing court had before it, as an attachment to the
PSR addendum, the “Conviction and Sentencing Order” from the Virginia case.
This Conviction and Sentencing Order, signed by the court, twice describes that
Flores possessed methamphetamine with “intent to manufacture, sell, or
distribute it, as charged in the indictment.” Consistent with that limiting
description and acceptable under Shepard, the indictment, which exists in the
record on appeal, charged that Flores possessed methamphetamine with “intent
to manufacture, sell or distribute it.” See Shepard, 544 U.S. at 16.
Consequently, the indictment, and the Conviction and Sentencing Order
referring to that indictment, show that Flores was not prosecuted for or
convicted of merely giving away methamphetamine. It was not a clear or
obvious error, therefore, for the district court to conclude that Flores had been
convicted of a drug-trafficking felony. See Rodriguez, 523 F.3d at 524. The
judgment of the district court is AFFIRMED.




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