Case: 13-40089      Document: 00512574712         Page: 1    Date Filed: 03/26/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 13-40089
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
UNITED STATES OF AMERICA,                                                 March 26, 2014
                                                                           Lyle W. Cayce
                                                 Plaintiff-Appellee             Clerk

v.

WALTER ADELMO VILLEDA-MEJIA,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 1:12-CR-728-1


Before WIENER, HAYNES, and HIGGINSON, Circuit Judges.
PER CURIAM: *
       Walter Adelmo Villeda-Mejia appeals his within-guidelines sentence of
27 months of imprisonment imposed following his guilty-plea conviction for
illegal presence in the United States after removal. He challenges the district
court’s determinations that his prior state court conviction under Washington
Revised Code (RCW) § 69.50.401 was a drug trafficking offense and an
aggravated felony.



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 13-40089

      Because Villeda-Mejia did not object to these determinations in the
district court, review is for plain error. See United States v. Gonzalez-Terrazas,

, 296 (5th Cir. 2008). To show plain error, Villeda-Mejia must
show a forfeited error that is clear or obvious and that affects his substantial
rights. Puckett v. United States, 

, 135 (2009). If he makes such a
showing, this court has the discretion to correct the error, but only if it
seriously affects the fairness, integrity, or public reputation of judicial
proceedings. See 

that the district court erred when it enhanced his
guidelines offense by eight levels on the basis that his 1999 state conviction
under RCW § 69.50.401(a)(1)(i) was a felony drug trafficking offense for
purposes of U.S. Sentencing Guidelines Manual (“U.S.S.G.”) § 2L1.2(b)(1)(B).
A defendant, such as Villeda-Mejia, sentenced under § 2L1.2 is subject to an
eight-level increase if he was previously deported after having been convicted
of a drug-trafficking offense for which the sentence imposed was 13 months or
less and the conviction did not receive criminal history points.        U.S.S.G.
§ 2L1.2(b)(1)(B). Courts employ a categorical approach when determining
whether a prior conviction qualifies as an enumerated offense for enhancement
purposes, looking to the elements of the prior offense rather than the facts
underlying that conviction. United States v. Garza-Lopez, 

, 273
(5th Cir. 2005). When it is necessary to determine if the defendant’s prior
offense falls within the definition of the enumerated offense, the court may
consider certain judicial records, including the judgment, “charging document,
written plea agreement, transcript of plea colloquy, and any explicit factual
finding by the trial judge to which the defendant assented.” Shepard v. United
States, 

, 16 (2005); United States v. Garcia-Arellano, 

,
480 (5th Cir. 2008).



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                                 No. 13-40089

      Section 69.50.401 states “Except as authorized by this chapter, it is
unlawful for any person to manufacture, deliver, or possess with intent to
manufacture or deliver, a controlled substance.” Although the government
introduced at sentencing a number of documents as to Villeda-Mejia’s
conviction under this statute without objection, Villeda-Mejia argues on appeal
that these documents are ambiguous and unreliable and should not be
considered in determining whether his prior conviction constitutes a drug
trafficking offense. He argues that the Washington statute may encompass
different drugs than those encompassed by the guidelines, cf. Descamps v.
United States, 

, 2283 (2013), although he conceded that the
statute is divisible in this regard. Cf. United States v. Castleman, No. 12-1371,

*22 (U.S. Mar. 26, 2014) (noting that the parties there
did not contest that the statute in question was “divisible”). We disagree that
the nature of the drug is ambiguous. The documents show that the drug was
“heroin,” plainly a controlled substance for purposes of the guidelines in
question (and Villeda-Mejia admitted as much before the district court).
      Villeda-Mejia also argues that “delivery” under the Washington statute
(but not the guidelines enhancement) includes “administering” such that he
must prevail in light of Moncrieffe v. Holder, 

(2013), and
Descamps. Neither case involved the same situation presented here. Unlike
those cases, here Villeda-Mejia has not pointed to a Washington case applying
this statute in an “administering” situation. Accordingly, it is far from clear
that the Washington statute encompasses “administering.”              We have
previously held that a “theoretical possibility” that a state statute would
encompass conduct that is not part of the offense to which an enhancement
would apply is insufficient to avoid the enhancement.          United States v.
Carrasco-Tercero, 12-51243, 

*11 (5th Cir. Mar. 13,



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                                 No. 13-40089

2014). Certainly the idea that delivery under the Washington statute would
encompass “administering” is not “clear or obvious” as required for plain error.
We also conclude that this “theoretical possibility” makes it inappropriate for
us to exercise our discretion to correct any such error under the fourth prong
of plain error review. See United States v. Escalante-Reyes, 

, 425
(5th Cir. 2012) (en banc) (“[W]e do not view the fourth prong as automatic if
the other three prongs are met.”). In light of the judgment and sentence, the
information, and the statute of conviction, we hold that the district court did
not plainly err in finding Villeda-Mejia’s conviction for delivery of heroin
constituted a drug-trafficking offense for purposes of § 2L1.2(b)(1)(B)’s
enhancement. See United States v. Marban-Calderon, 

, 211-13
(5th Cir. 2011).
      The district court also did not plainly err in finding that the conviction
qualifies as an aggravated felony for purposes of 8 U.S.C. § 1326(b)(2). See 8
U.S.C. § 1101(a)(43)(B); 18 U.S.C. § 924(c); 21 U.S.C. § 802(8); 21 U.S.C. §
812(c); 21 U.S.C. § 841(a)(1), (b)(1)(C); 

.
Thus, it was not plain error for the district court to convict and sentence
Villeda-Mejia under § 1326(b)(2). See 

.
      Accordingly, the district court’s judgment is AFFIRMED.




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