United States v. Sergio Ramirez-Gandarilla

Case: 14-40969 Document: 00513116143 Page: 1 Date Filed: 07/15/2015

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 14-40969
Summary Calendar
United States Court of Appeals
Fifth Circuit

FILED
July 15, 2015
UNITED STATES OF AMERICA,
Lyle W. Cayce
Clerk
Plaintiff-Appellee

v.

SERGIO RAMIREZ-GANDARILLA,

Defendant-Appellant

Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:14-CR-214-1

Before KING, JOLLY, and HAYNES, Circuit Judges.
PER CURIAM: *
Sergio Ramirez-Gandarilla pleaded guilty to being an alien unlawfully
found in the United States after deportation, having been previously convicted
of a felony. Relevant to the appeal, the district court assessed a 12-level “drug
trafficking offense” enhancement, pursuant to § 2L1.2(b)(1)(B), based on
Ramirez-Gandarilla’s 1989 federal conviction for possession with intent to
distribute marijuana.

* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 14-40969 Document: 00513116143 Page: 2 Date Filed: 07/15/2015

No. 14-40969

For the first time on appeal, Ramirez-Gandarilla argues that the district
court plainly erred by applying the 12-level drug trafficking enhancement
under § 2L1.2 because his 1989 federal conviction for possession with intent to
distribute marijuana could have been committed without evidence of
remuneration or commercial activity.
This court recently held that an enhancement under § 2L1.2(b)(1)(A)(i)
for a prior drug trafficking offense, as that term is defined by the Sentencing
Commission in § 2L1.2, comment. (n.1(B)(iv)), is warranted regardless of
whether the conviction for the prior offense required proof of remuneration or
commercial activity. United States v. Martinez-Lugo, 782 F.3d 198, 204-05 (5th
Cir. 2015). Additionally, in United States v. Rodriguez-Escareno, 700 F.3d 751,
754 (5th Cir. 2012), this court specifically stated that “21 U.S.C. § 841(a)(1) is
a federal drug trafficking offense as defined in Application Note 1” of § 2L1.2.
Accordingly, the judgment of the district court is AFFIRMED.

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