Case: 13-40592 Document: 00512613259 Page: 1 Date Filed: 04/30/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 13-40592
FILED
April 30, 2014
Summary Calendar
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
ERNESTO GOMEZ-MARTINEZ, also known as Jhonathan Adison Guevara-
Tovar, also known as Julio Lopez,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:13-CR-101-1
Before REAVLEY, JONES, and PRADO, Circuit Judges.
PER CURIAM: *
Ernesto Gomez-Martinez appeals the sentence imposed following his
guilty plea conviction for being found in the United States after a previous
deportation in violation of 8 U.S.C. § 1326. He argues that the district court
plainly erred by enhancing his sentence based on a finding that his 2004
conviction under Ohio Revised Code § 2925.03(A)(2) was a felony 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 13-40592
trafficking offense under U.S.S.G. § 2L1.2(b)(1)(A)(i). In support of his
argument, Gomez-Martinez contends that § 2925.03(A)(2) criminalizes activity
that does not fall within the definition of a drug trafficking offense under
§ 2L1.2 because the terms “sale” and “resale,” which are used in
§ 2925.03(A)(2), incorporate not only commercial dealing but also giving or
offering to give away controlled substances. In contrast, he contends that the
definition of a drug trafficking offense in the commentary to § 2L1.2 does not
encompasses giving or offering to give away controlled substances.
Because Gomez-Martinez did not raise his instant arguments in the
district court, our review is for plain error. See United States v. Henao-Melo,
591 F.3d 798, 801 (5th Cir. 2009). To prevail, he must show a forfeited error
that is clear or obvious and affects his substantial rights. See Puckett v. United
States, 556 U.S. 129, 135 (2009). If Gomez-Martinez makes this showing, we
have the discretion to correct the error but only if it “seriously affect[s] the
fairness, integrity or public reputation of judicial proceedings.” Id. (internal
quotation marks and citation omitted).
Even if it were true that § 2925.03(A)(2) criminalizes giving away or
offering to give away controlled substances, for no remuneration, we have “not
conclusively answered the question of whether a conviction for giving away or
offering to give away a controlled substance constitutes a drug trafficking
offense” under § 2L1.2 of the 2012 version of the Sentencing Guidelines at issue
herein. See United States v. Perez-Melgarejo, No. 13-40157, 2014 WL 129393,
*2 (5th Cir. Jan. 15, 2014). Although the Supreme Court’s decision in
Moncrieffe v. Holder, 133 S. Ct. 1678 (2013), addressed whether an alien’s prior
Georgia conviction for possession of 1.3 gram of marijuana with intent to
distribute constituted an aggravated felony under immigration law, we have
not yet decided the effect of Moncrieffe, if any, in determining whether a prior
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No. 13-40592
conviction for giving away a small amount of a controlled substance constitutes
a drug trafficking offense for purposes of applying the offense level
enhancements of § 2L1.2.
Because this issue is subject to reasonable debate, see United States v.
Ellis, 564 F.3d 370, 377-78 (5th Cir. 2009), and the error is not readily
apparent, see Henao-Melo, 591 F.3d at 806, the district court’s application of
the § 2L1.2(b)(1)(A)(i) enhancement herein, if erroneous, did not constitute
clear or obvious error. Accordingly, Gomez-Martinez cannot satisfy the second
prong of the plain error inquiry, see Puckett, 556 U.S. at 135, and we AFFIRM
the district court’s judgment.
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