United States v. Varela-Medina

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT December 10, 2004

Charles R. Fulbruge III
Clerk
No. 04-40045
Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

GEORGE ALBERTO VARELA-MEDINA,

Defendant-Appellant.

--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:03-CR-1319-ALL
--------------------

Before DAVIS, SMITH and DENNIS, Circuit Judges

PER CURIAM:*

George Alberto Varela-Medina (“Varela”) appeals the sentence

imposed following his guilty-plea conviction for illegal reentry

following deportation, in violation of 8 U.S.C. § 1326. He

argues that the district court erred in imposing a 12-point

enhancement, pursuant to U.S.S.G. § 2L1.2(b)(1)(B), based on the

determination that his prior felony conviction under California

Health and Safety Code § 11352(a) was a “drug-trafficking

offense” within the meaning of the guideline. Varela contends

*
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this opinion should not be published and is not precedent except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. 04-40045
-2-

that the statute of conviction is overly broad, criminalizing

behavior such as simple possession, and cannot support the

enhancement under U.S.S.G. § 2L1.2(b)(1)(B). To the extent that

Varela seeks reversal of his sentence based on a categorical

rejection of a § 11352(a) offense as a “drug-trafficking offense”

for purposes of U.S.S.G. § 2L1.2(b)(1)(B), his argument is

without merit. See United States v. Rodriguez-Duberney, 326 F.3d

613, 617 (5th Cir.), cert. denied, 124 S. Ct. 259 (2003).

Because Varela did not object in the district court to the

legal sufficiency of the PSR to sustain the enhancement, review

as to this issue is for plain error only. See United States v.

Calverley, 37 F.3d 160, 162-64 (5th Cir. 1994)(en banc). Even if

the district court erred in relying on the legally inadequate PSR

to sustain the enhancement, Varela cannot show that the error

affected his substantial rights so as to establish plain error

because the uncontested record evidence demonstrates that his

prior conviction was for selling cocaine; the record lacks any

evidence that he merely possessed cocaine. Cf. United States v.

Martinez-Cortez, 988 F.2d 1408, 1416 & n.37 (5th Cir. 1993).

Varela additionally contends, also for the first time on

appeal, that the “felony” and “aggravated felony” provisions of

8 U.S.C. § 1326(b)(1) and (2) are unconstitutional in the light

of Apprendi v. New Jersey, 530 U.S. 466 (2000), and Blakely v.

Washington, 124 S. Ct. 2531 (2004). He concedes that his

argument is foreclosed by Almendarez-Torres v. United States, 523
 No. 04-40045
-3-

U.S. 224, 239-47 (1998), but he seeks to preserve it for possible

Supreme Court review.

Apprendi did not overrule Almendarez-Torres. See Apprendi,

530 U.S. at 489-90; United States v. Dabeit, 231 F.3d 979, 984

(5th Cir. 2000). Inasmuch as Varela argues that Blakely

invalidates the Sentencing Guidelines, his argument is

foreclosed. See United States v. Pineiro, 377 F.3d 464, 465-66

(5th Cir. 2004), petition for cert. filed (July 14, 2004) (No.

04-5263).

The district court’s judgment is AFFIRMED.