United States v. Gutierrez-Ortiz

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS February 6, 2004
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk

No. 03-50807
Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

EDGAR ALONSO GUTIERREZ-ORTIZ,

Defendant-Appellant.

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Appeal from the United States District Court
for the Western District of Texas
USDC No. EP-03-CR-214-ALL-PRM
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Before JONES, BENAVIDES, and CLEMENT, Circuit Judges.

PER CURIAM:*

Edgar Alonso Gutierrez-Ortiz (Gutierrez) appeals the 41-

month sentence imposed following his guilty-plea conviction of

attempted illegal re-entry of a deported alien. Gutierrez

contends that the district court erred in increasing his offense

level under U.S.S.G. § 2L1.2(b)(1)(A). He asserts that his prior

conviction for violating 21 U.S.C. § 843(b) is not a “drug

trafficking offense.”

*
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that this opinion should not be published and is not precedent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.
 No. 03-50807
-2-

An element of a 21 U.S.C. § 843(b) offense is the

defendant’s commission of an independent drug crime or

facilitation of such a crime. United States v. Mankins, 135 F.3d

946, 949 (5th Cir. 1998). Gutierrez’s prior conviction was for

use of a telephone to distribute heroin. Accordingly, we affirm

the district court’s imposition of the 16-level increase in

Gutierrez’s offense level based on his previously having

committed a drug trafficking offense. Id.; see United States v.

Orihuela, 320 F.3d 1302 (11th Cir. 2003).

AFFIRMED.