Case: 12-40078       Document: 00511970035         Page: 1     Date Filed: 08/27/2012




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

                                                                            FILED
                                                                          August 27, 2012
                                     No. 12-40078
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk




UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee,

versus

ENOC MARTINEZ-CALLES,

                                                  Defendant-Appellant.




                   Appeal from the United States District Court
                        for the Southern District of Texas
                                No. 2:11-CR-897-1



Before SMITH, STEWART, and PRADO, Circuit Judges.
PER CURIAM:*
       Enoc Martinez-Calles appeals the twenty-one-month sentence imposed
after he pleaded guilty of being unlawfully present in the United States after
deportation. In calculating a sentencing-guideline range of 15-21 months, the


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-40078    Document: 00511970035      Page: 2   Date Filed: 08/27/2012

                                  No. 12-40078

district court included an eight-level enhancement pursuant to U.S.S.G.
§ 2L1.2(b)(1)(C). Martinez-Calles argues that the court erred in applying the
enhancement, because his underlying North Carolina drug convictions do not
qualify as aggravated felonies for purposes of the enhancement. He further
claims that the sentence is substantively unreasonable, because the court relied
too heavily on his criminal history.
      The North Carolina offenses meet the definition of aggravated felony for
purposes of § 2L1.2(b)(1)(C), because they would be punishable as felonies under
the Controlled Substances Act. See Lopez v. Gonzales, 

, 60 (2006).
We need not reach Martinez-Calles’s unsupported arguments that the definition
of aggravated felony should exclude drug trafficking offenses and that to con-
clude otherwise would render the drug-trafficking provisions of § 2L1.2(b)(1)(C)
surplusage. If the district court erred, which we do not conclude, any error was
harmless and does not require that the sentence be vacated. See United States
v. Bonilla, 

, 656-57 (5th Cir. 2008); United States v. Duhon, 

, 396 (5th Cir. 2008).
      Martinez-Calles did not challenge the substantive reasonableness of his
sentence in district court, so we review for plain error only. See United States
v. Whitelaw, 

, 259 (5th Cir. 2009). The district court was in the best
position to evaluate Martinez-Calles’s history and characteristics as well as the
need for the sentence to further the objectives in § 3553(a)SS such as deterring
future criminal activity, promoting respect for the laws, and protecting the pub-
lic from possible harmSSand the district court’s reasoned decision is entitled to
deference. See Gall v. United States, 

, 51-52 (2007); United States v.
Gutierrez, 

, 155 (5th Cir. 2011). The court did not plainly err in con-
cluding, after considering all the § 3553(a) factors, that the sentence was neces-
sary to reflect the seriousness of Martinez-Calles’s criminal history and to deter
crime. See Gutierrez, 635 F.3d at 155. The judgment of sentence is AFFIRMED.



                                        2