United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT May 10, 2006
Charles R. Fulbruge III
Clerk
No. 05-50881
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE ALBERTO RODRIGUEZ-IBARRA,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Texas
(3:05-CR-262-ALL)
Before BARKSDALE, STEWART, and CLEMENT, Circuit Judges.
PER CURIAM:*
Jose Alberto Rodriguez-Ibarra appeals the sentence imposed
following his guilty-plea conviction for illegal reentry after
deportation, in violation of 8 U.S.C. § 1326. He claims the
district court reversibly erred: (1) in treating his prior state
drug conviction as a “drug trafficking offense” under Sentencing
Guideline § 2L1.2(b)(1)(A); and (2) in denying his downward-
*
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this opinion should not be published and is not precedent except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.
departure motion because, in doing so, the court did not consider
the sentencing factors in 18 U.S.C. § 3553(a) and therefore imposed
his sentence under a mandatory guidelines scheme.
Unlike United States v. Gutierrez-Ramirez, 405 F.3d 352, 359
(5th Cir.), cert. denied, 126 S. Ct. 217 (2005), the district court
in this case had access to the charging document for Rodriguez-
Ibarra’s 1996 state drug conviction. Count Two of that document,
the count to which Rodriguez-Ibarra pleaded guilty, charged that
Rodriguez-Ibarra, in violating California Health & Safety Code
§ 11352, did “willfully and unlawfully sell a controlled substance,
to wit: Cocaine”. Accordingly, the charging document did not
merely track the language of § 11352(a), but provided evidence that
Rodriguez-Ibarra’s § 11352(a) conviction qualified as a “drug
trafficking offense” under the Guidelines. See id.;
§ 2L1.2(b)(1)(B), cmt. n.1(B)(iv).
Because Rodriguez-Ibarra maintains, for the first time on
appeal, that his sentence was imposed under a mandatory guidelines
scheme, our review is for plain error. United States v.
Valenzuela-Quevedo, 407 F.3d 728, 732 (5th Cir.), cert. denied, 126
S. Ct. 267 (2005). There is no error, plain or otherwise, because,
in its Statement of Reasons, the district court stated it
considered the Guidelines in an advisory fashion and that a
reasonable and adequate sentence could be achieved only by imposing
a sentence outside the advisory guidelines range. Rodriguez-Ibarra
was sentenced to 36 months of imprisonment, below the recommended
41-51 months range.
AFFIRMED