Case: 13-50457      Document: 00512553948         Page: 1    Date Filed: 03/07/2014




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

                                    No. 13-50457                                  FILED
                                  Summary Calendar                            March 7, 2014
                                                                             Lyle W. Cayce
                                                                                  Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

ROBERTO ANTONIO RODRIGUEZ-JIMENEZ,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 3:12-CR-2476


Before WIENER, OWEN, and HAYNES, Circuit Judges.
PER CURIAM: *
       Roberto Antonio Rodriguez-Jimenez (Rodriguez) appeals the 46-month
sentence he received after pleading guilty to being unlawfully present in the
United States after deportation. He contends that the district court committed
plain error by imposing a 16-level sentencing enhancement under U.S.S.G.
§ 2L1.2(b)(1)(A)(i) based on a determination that Rodriguez’s prior
Pennsylvania conviction for manufacture/deliver/possess with intent to


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 13-50457       Document: 00512553948    Page: 2   Date Filed: 03/07/2014


                                   No. 13-50457

manufacture or deliver cocaine qualified as a felony drug trafficking offense.
Rodriguez asserts that his offense is broader than the standard definition of a
“drug trafficking offense” because he may have been convicted of “delivery,”
which, he contends, “includes offers to sell.” In lieu of a response brief, the
Government moved for summary affirmance, asserting that Rodriguez is not
entitled to relief on his allegations. Rodriguez filed no response to the motion
for summary affirmance.
         Contrary to Rodriguez’s assertion, the Pennsylvania offense of “delivery”
of a controlled substance does not include offers to sell. See 35 PA. CONS. STAT.
ANN. § 780-102(b). Moreover, the Sentencing Commission has amended the
definition of a “drug trafficking offense” to include offers to sell controlled
substances. See § 2L1.2, comment. (n.1(B)(iv)). Rodriguez’s sole argument on
appeal, then, is unavailing.       Accordingly, we pretermit the Government’s
motion for summary affirmance, and AFFIRM the judgment of the district
court.




                                         2