United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT October 16, 2006
_____________________ Charles R. Fulbruge III
Clerk
No. 05-41741
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ELIZABETH BENAVIDEZ-GONZALEZ,
Defendant-Appellant.
__________________
Appeal from the United States District Court
For the Southern District of Texas
(05-CR-223)
__________________
Before JOLLY, DAVIS, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Elizabeth Benavidez-Gonzalez pleaded guilty to being
illegally present in the United States after previously having
been deported, in violation of 8 U.S.C. § 1326(a) and (b) (2005).
At sentencing, she received a 16-level sentencing enhancement
based on a previous conviction for delivery of a controlled
substance and was sentenced to 30 months. Benavidez-Gonzalez now
appeals her sentence arguing: (1) the district court erred by
enhancing her sentence under United States Sentencing Guidelines
*
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this opinion should not be published and is not precedent except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.
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(“U.S.S.G.”) § 2L1.2(b)(1)(A)(i) (2005); and (2) the enhancement
provisions contained in 8 U.S.C. § 1326(b) are unconstitutional.
For the following reasons, the sentence is AFFIRMED.
I.
On May 5, 2005, Benavidez-Gonzalez pleaded guilty to being
illegally present in the United States in violation of 8 U.S.C. §
1326(a) and (b). The PSR recommended a 16-level enhancement
because of a prior conviction for “a drug trafficking offense for
which the sentence imposed exceeded thirteen months.” U.S.S.G §
2L1.2(b)(1)(A)(i). In 1997, Benavidez-Gonzalez was convicted in
Texas state court of possession with intent to deliver cocaine and
was sentenced to 15 years imprisonment. The probation officer
based the 16-level adjustment on this conviction.
Prior to sentencing, Benavidez-Gonzalez asserted that the
16-point upward adjustment was inappropriate because neither the
indictment nor the judgment had been produced nor had any
reference been made to the statute of conviction. Benavidez-
Gonzalez also objected to the constitutionality of 8 U.S.C. §
1326(b).
At sentencing, after the indictment and the judgment of
conviction had been filed in the record, the district court
overruled Benavidez-Gonzalez’s general objection to application
of the “drug trafficking” enhancement. The relevant state court
documents showed that Benavidez-Gonzalez had pleaded guilty to an
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indictment which stated that she had “unlawfully, intentionally
and knowingly possess[ed] with intent to DELIVER a controlled
substance, namely, COCAINE, ...” (emphasis in original). These
documents did not, however, provide any underlying facts of
Benavidez-Gonzalez’s crime. The district court also overruled
Benavidez-Gonzalez’s constitutional challenge to the statute of
conviction, 8 U.S.C. § 1326(b). After making a number of
adjustments that are not challenged on appeal, Benavidez-
Gonzalez’s advisory guidelines imprisonment range was 30 to 37
months. The court sentenced her to 30 months, to be followed by
a two-year term of supervised release. This appeal followed.
Appellant raises two issues: (1) whether the district court
misapplied the Guidelines when it enhanced her offense level by
16 levels pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(i); and (2)
whether the enhancement provisions of 8 U.S.C. § 1326(b) are
unconstitutional.
II.
A.
Benavidez-Gonzalez argues that the district court erred by
enhancing her sentence by 16 levels on the basis of her 1997
conviction. Benavidez-Gonzalez notes that the relevant statutory
provision, Texas Health and Safety Code § 481.112(a), criminalizes
a variety of conduct, including acts that cannot form the basis for
a sentencing enhancement under § 2L1.2(b)(1)(A)(i). Because
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Benavidez-Gonzalez did not object to the 16-level enhancement on
the basis that her conviction did not constitute a drug-trafficking
felony in the district court, we review for plain error.
Plain error exists when: “(1) there was an error: (2) the
error was clear and obvious; and (3) the error affected the
defendant’s substantial rights.” United States v. Villegas, 404
F.3d 355, 358 (5th Cir. 2005). Even if these conditions are met,
an appellate court may exercise its discretion to notice the
error only if “(4) the error seriously affects the fairness,
integrity, or public reputation of judicial proceedings.” Id. at
358-59.
Benavidez-Gonzalez argues that the statute at issue includes
some conduct that would not qualify as “drug trafficking” under
the Sentencing Guidelines. Specifically, she notes that the
Texas statute’s definition of “delivery” includes merely
“offering to sell” the substance. TEX. HEALTH & SAFETY CODE ANN. §
481.002(8) (Vernon 2005). We assume without deciding that she is
correct.
We conclude, however, that even if the district court
committed obvious error, Benavidez-Gonzalez has failed to satisfy
the third prong of plain error review. To show that the error in
applying the sentencing enhancement affected her substantial
rights, Benavidez-Gonzalez must at least argue that her previous
conduct did not constitute drug trafficking. See United States
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v. Ochoa-Cruz, 442 F.3d 865, 867 (5th Cir. 2006). In Ochoa,
utilizing the categorical approach, we concluded that the
district court had erred in imposing an enhancement because it
had failed to examine the statutes under which the defendant’s
prior convictions were attained, and had instead relied on the
presentence report’s characterization of those convictions as
“crimes of violence.” Ochoa-Cruz, 442 F.3d at 867. Although the
panel found that the district court had committed obvious error,
it concluded that the defendant had failed to satisfy the third
prong of the plain error test because he had not argued that his
previous conduct did not constitute “crimes of violence.” Id.
The court said that in order to satisfy the third prong of plain
error, the defendant must “at least argue that the crime of
violence enhancement was ultimately wrong.” Id. In Gonzalez-
Patino, we similarly found that where the defendant had not
argued that his conviction was for conduct that was not “drug
trafficking,” he could not establish under plain error review
that application of a drug trafficking enhancement affected his
substantial rights. 2006 WL 1307502, at *2.
Benavidez-Gonzalez has not argued to the district court or to
this court that her conduct did not constitute a “drug trafficking
offense.” She has not demonstrated that the district court’s error
affected her substantial rights. Therefore, her argument fails
under plain error review.
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B.
Benavidez-Gonzalez contends that the “felony” and “aggravated
felony” provisions of 8 U.S.C. § 1326(b) are unconstitutional,
facially and as applied to her. Her challenge to the
constitutionality of § § 1326(b)(1) and (2) is foreclosed by
Alemndarez-Torres v. United States, 523 U.S. 224, 235 (1998), in
which the Supreme Court held that the treatment of prior
convictions as sentencing factors in sections 1326(b)(1) and (2) is
constitutional. Although Benavidez-Gonzalez contends that a
majority of the Supreme Court now considers Almendarez-Torres to be
incorrectly decided in light of Apprendi, this court has repeatedly
rejected arguments like the one made by Benavdiez-Gonzalez and has
held that Almendarez-Torres remains binding despite Apprendi. See,
e.g., United States v. Mendez-Villa, 346 F.3d 568, 570-71 (5th Cir.
2003) (per curiam). Accordingly, Benavidez-Gonzalez’s arguments
that § 1326(b)(1) and (2) are unconstitutional in light of Apprendi
fail.
III.
For the foregoing reasons, the judgment of the district
court is AFFIRMED.
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