Case: 13-40943 Document: 00512731740 Page: 1 Date Filed: 08/13/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 13-40943 FILED
Summary Calendar August 13, 2014
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
VALENTIN CORTES-TOLENTINO, also known as Valentino Cortez
Tolentino, also known as Valentin Cortez Tolentino,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:13-CR-353-1
Before STEWART, Chief Judge, and JOLLY and SOUTHWICK, Circuit
Judges.
PER CURIAM: *
Valentin Cortes-Tolentino appeals the sentence imposed following his
guilty plea conviction for being found unlawfully in the United States after
deportation in violation of 8 U.S.C. § 1326. He contends that the district court
plainly erred when it enhanced his sentence based on a finding that his 2005
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 13-40943
Virginia conviction for possession with intent to distribute cocaine was a felony
drug trafficking offense for purposes of U.S.S.G. § 2L1.2(b)(1)(A)(i). Relying on
the Supreme Court’s decision in Moncrieffe v. Holder, 133 S. Ct. 1678 (2013),
as well as this court’s decision in United States v. Garza–Lopez, 410 F.3d 268
(5th Cir. 2005), Cortes-Tolentino argues that the Virginia statute under which
he was convicted, VA. CODE ANN. § 18.2-248, is broader than the drug
trafficking offense definition set forth in the commentary to § 2L1.2 because
under Virginia law, “distribution” of a controlled substance includes giving it
away for no consideration. Because the state court documents did not narrow
his conviction to a qualifying drug trafficking offense, he argues that the
district court’s application of the § 2L1.2(b)(1)(A)(i) enhancement was a clear
and obvious error.
As Cortes-Tolentino concedes, this court’s review is for plain error
because he did not object to the § 2L1.2(b)(1)(A)(i) enhancement in the district
court. See United States v. Henao-Melo, 591 F.3d 798, 801 (5th Cir. 2009). To
show plain error, Cortes-Tolentino must show a forfeited error that is clear or
obvious and that affects his substantial rights. See Puckett v. United States,
556 U.S. 129, 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 id.
Cortes-Tolentino acknowledges that in United States v. Rodriguez, 523
F.3d 519, 523-24 (5th Cir. 2008), this court held that distribution of cocaine
under § 18.2-248 is a drug trafficking offense under the Sentencing Guidelines.
However, he contends that Rodriguez does not foreclose the issue he raises on
appeal because this court did not address in Rodriguez the argument that
“distribution” under the Virginia statute can encompass giving away a
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No. 13-40943
controlled substance and that giving away a controlled substance falls outside
of the definition of a drug trafficking offense under the Guidelines.
After this court’s decision in Garza–Lopez, the United States Sentencing
Commission amended § 2L1.2’s definition of a drug trafficking offense to
include offers to sell a controlled substance. See § 2L1.2, comment. (n.1(B)(iv));
United States v. Marban–Calderon, 631 F.3d 210, 211-12 (5th Cir. 2011). This
court has not conclusively answered the question whether a conviction for
giving away or offering to give away a controlled substance constitutes a drug
trafficking offense under the post-2008 version of § 2L1.2. Further, the
Supreme Court’s decision in Moncrieffe addressed whether an alien’s Georgia
conviction for possession with intent to distribute 1.3 grams of marijuana
qualified as an aggravated felony for purposes of 8 U.S.C. § 1101(a)(43)(B),
Moncrieffe, 133 S. Ct. at 1683-84, and this court has yet to address Moncrieffe’s
effect, if any, on whether a conviction for sharing a small amount of a controlled
substance for no remuneration qualifies as a drug trafficking offense under
§ 2L1.2(b)(1)(A)(i). Because the issue is subject to reasonable debate and the
error is not readily apparent, the district court's application of the
§ 2L1.2(b)(1)(A)(i) enhancement, if erroneous, did not rise to the level of a clear
or obvious error. See United States v. Ellis, 564 F.3d 370, 377-78 (5th Cir.
2009). Accordingly, Cortes-Tolentino cannot show plain error, and the district
court's judgment is AFFIRMED.
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