Case: 13-41068 Document: 00513106364 Page: 1 Date Filed: 07/07/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 13-41068
Summary Calendar
United States Court of Appeals
Fifth Circuit
FILED
July 7, 2015
UNITED STATES OF AMERICA,
Lyle W. Cayce
Clerk
Plaintiff - Appellee
v.
JULIO SARABIA-BALTAZAR, also known as Jose Noel Mercado,
Defendant - Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:13-CR-761-1
Before JOLLY, BARKSDALE, and OWEN, Circuit Judges.
PER CURIAM: *
Julio Sarabia-Baltazar challenges his 57-month sentence of
imprisonment, imposed following his guilty plea to illegal reentry following
deportation, in violation of 8 U.S.C. § 1326. He contends the district court
erroneously applied a 16-level enhancement pursuant to Sentencing Guideline
§ 2L1.2(b)(1)(A)(i), based on his 2010 Oklahoma-state convictions for:
conspiracy to possess, with intent to distribute, cocaine; and possession, with
* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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: 13-41068 Document: 00513106364 Page: 2 Date Filed: 07/07/2015
No. 13-41068
intent to distribute, cocaine. Sarabia asserts the Oklahoma statutory
provisions under which he was convicted are broader than the generic
contemporary definition of “drug trafficking offense” in the commentary to
Guideline § 2L1.2 because they criminalize the distribution of cocaine without
remuneration. U.S.S.G. § 2L1.2 cmt. n.1(B)(iv) (“‘Drug trafficking offense’
means an offense under federal, state, or local law that prohibits the
manufacture, import, export, distribution, or dispensing of, or offer to sell a
controlled substance (or a counterfeit substance) or the possession of a
controlled substance (or a counterfeit substance) with intent to manufacture,
import, export, distribute, or dispense.”).
Although post-Booker, the Guidelines are advisory only, and a properly
preserved objection to an ultimate sentence is reviewed for reasonableness
under an abuse-of-discretion standard, the district court must still properly
calculate the advisory Guidelines-sentencing range for use in deciding on the
sentence to impose. Gall v. United States, 552 U.S. 38, 51 (2007). In that
respect, for issues preserved in district court, its application of the Guidelines
is reviewed de novo; its factual findings, only for clear error. E.g., United States
v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008).
As Sarabia concedes, because he did not object in district court to the
Guideline § 2L1.2(b)(1)(A)(i) enhancement, review is only for plain error. E.g.,
United States v. Krout, 66 F.3d 1420, 1434 (5th Cir. 1995). To demonstrate
plain error, Sarabia must show a forfeited error that is clear or obvious and
that affects his substantial rights. Puckett v. United States, 556 U.S. 129, 135
(2009). If he makes such a showing, we have the discretion to correct the error,
but only if it seriously affects the fairness, integrity, or public reputation of
judicial proceedings. Id.
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Case: 13-41068 Document: 00513106364 Page: 3 Date Filed: 07/07/2015
No. 13-41068
Sarabia fails to show the requisite clear or obvious error. The
enhancement under Guideline § 2L1.2(b)(1)(A)(i) for Sarabia’s prior conviction
for a drug-trafficking offense is warranted, regardless of whether the
conviction under Oklahoma law required proof of remuneration or commercial
activity. See United States v. Martinez-Lugo, 782 F.3d 198, 204-05 (5th Cir.
2015).
AFFIRMED.
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