IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
March 25, 2008
No. 06-11276
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
ABEL GARCIA-ARELLANO
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
Before WIENER, GARZA, and BENAVIDES, Circuit Judges.
EMILIO M. GARZA, Circuit Judge:
Abel Garcia-Arellano (“Garcia”) appeals the sentence imposed for his
unlawful reentry following removal from the United States. Garcia asserts that
the district court plainly erred by enhancing his sentence based on the
determination that his prior Texas conviction for unlawful delivery of cocaine
qualifies as a drug-trafficking offense under the sentencing guidelines. Garcia
also asserts that the felony and aggravated felony provisions of 8 U.S.C. §
1326(b) are unconstitutional. We affirm the sentence imposed by the district
court.
No. 06-11276
I
Garcia pleaded guilty, without a written agreement, to being an alien
found in the Untied States after having been removed. See 8 U.S.C. § 1326(a),
(b)(2). Pursuant to UNITED STATES SENTENCING GUIDELINES MANUAL (“USSG”)
§ 2L1.2(a) (2005), the presentence investigation report (“PSR”) recommended a
base offense level of 8 for Garcia. Based on Garcia’s prior Texas conviction for
“delivery of a controlled substance” under TEX. HEALTH & SAFETY CODE ANN. §
481.112(a), the PSR recommended a 12-level enhancement to Garcia’s offense
level under USSG § 2L1.2(b)(1)(B), because Garcia’s prior conviction qualified
as a “drug trafficking offense.” The PSR also provided for a three-level reduction
for acceptance of responsibility. An offense level of seventeen coupled with
Garcia’s criminal history category of II resulted in a guidelines range of 27-33
months imprisonment.
Garcia objected to the PSR’s assessment of the statutory maximum
incarceration and supervised release periods, noting that recent rulings have
evidenced the Supreme Court’s intent to overrule its holding in Almendarez-
Torres v. United States, 523 U.S. 224 (1998). The district court overruled this
objection. At the sentencing hearing, Garcia’s counsel stated that there were no
objections to the 12-level enhancement, but asked the court to consider imposing
a sentence at or below the low end of the guidelines range. In seeking lenience,
counsel argued that Garcia’s prior conviction involved a small amount of drugs,
specifically stating that “although it’s a drug trafficking crime, it’s a $20 hand-to-
hand transaction with an undercover officer.”
The district court sentenced Garcia to 30-months in prison and two-years’
supervised release. At sentencing, the record did not include any proof of
Garcia’s prior conviction other than the PSR and counsel’s statements during the
sentencing hearing. Garcia filed a timely notice of appeal and argues now that:
(1) the district court erred in applying the 12-level enhancement because his
Texas conviction does not fall within the guidelines’ definition of a “drug
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No. 06-11276
trafficking offense”; and (2) Section 1326(b) is unconstitutional in light of
Apprendi v. New Jersey, 530 U.S. 466 (2000), in that the statute treats prior
felony and aggravated felony convictions as sentencing factors.
While the district court relied only upon the PSR and counsel’s statements,
the record on appeal has been supplemented to include a number of documents
related to Garcia’s prior conviction. Garcia supplemented the record with a copy
of his Texas indictment. The government supplemented the record with copies
of Garcia’s state court judgment and Garcia’s judicial confession.
II
Garcia correctly concedes that because he did not object to the district
court’s application of § 2L1.2; review is for plain error only. See United States
v. Gracia-Cantu, 302 F.3d 308, 310 (5th Cir. 2002). Plain error exists when the
district court: (1) commits error, (2) that is plain or obvious, and (3) that error
affects the substantial rights of the defendant. See United States v. Marek, 238
F.3d 310, 315 (5th Cir. 2001). If these three prongs are met, this court will only
exercise its sound discretion to correct the error if it finds that the error
“seriously affects the fairness, integrity, or public reputation of judicial
proceedings.” Id. We analyze the district court’s error and the plainness of any
error at the time of appellate consideration. See United States v. Martinez-Vega,
471 F.3d 559, 561 (5th Cir. 2006) (citing Johnson v. United States, 520 U.S. 461
(1997)). Therefore, we must determine whether the district court plainly erred
in imposing the sentence enhancement based on the record before us as
supplemented with the state court documents concerning Garcia’s conviction.
See id. at 561-62 (analyzing district court’s imposition of enhancement for plain
error based on appellate record as supplemented to include state court
documents of conviction).1
1
For this reason, we need not address whether the district court erred in relying solely
on the PSR and counsel’s statements at the sentencing hearing.
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No. 06-11276
The Texas Health and Safety Code defines the term “deliver” broadly to
include, inter alia, an offer to sell a controlled substance. TEX. HEALTH & SAFETY
CODE ANN. § 481.002(8). Based on this broad definition, we have held that §
481.112 encompasses “both conduct that does constitute a drug trafficking
offense (trafficking cocaine) and conduct that does not (offering to sell cocaine).”
United States v. Morales-Martinez, 496 F.3d 356, 358 (5th Cir. 2007); see United
States v. Gonzales, 484 F.3d 712, 714-15 (5th Cir. 2007).2 Garcia contends that
the enhancement was improper because the court could not definitively
determine whether his conviction was for trafficking, or simply for an offer to
sell. Because the statute provides multiple ways to violate its terms, we must
determine whether Garcia’s offense of conviction under § 481.112 for unlawful
delivery falls within the guidelines definition. In making this determination, a
court may look beyond the statute itself to “the terms of the charging document,
the terms of a plea agreement or transcript of colloquy between judge and
defendant in which the factual basis for the plea was confirmed by the
defendant, or to some other comparable judicial record of this information.”
Shepard v. United States, 544 U.S. 13, 26 (2005) (emphasis added); see United
States v. Garza-Lopez, 410 F.3d 268, 274 (5th Cir. 2005).
Garcia’s indictment and state court judgment fall within the scope of
documents a court may consider under Shepard. See Shepard, 544 U.S. at 26
(listing charging document); United States v. Ford, 509 F.3d 714, 715 (5th Cir.
2007) (noting that district court had before it the Texas state indictment and
judgment). We hold today that a written judicial confession also constitutes a
“comparable judicial record” under Shepard, and that it may be considered in
determining whether a defendant’s prior conviction constitutes a drug trafficking
2
The commentary to section 2L1.2 defines “drug trafficking offense” as “an offense
under federal, state, or local law that prohibits the manufacture, import, export, distribution
or dispensing of a controlled substance. . . or the possession of a controlled substance. . . with
intent to manufacture, import, export, distribute or dispense.” USSG § 2L1.2 cmt n.1(B)(iv).
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No. 06-11276
offense under the guidelines. A Texas judicial confession is an admission made
in the course of judicial proceedings by a party, “such as a confession made to an
examining court before the trial.” Dinnery v. State, 592 S.W. 2d 343, 352 (Tex.
Crim. App. 1979). Under Texas law, a judicial confession which stipulates to the
factual content in an indictment provides a strong enough evidentiary basis to
support a judgment of conviction on the charge without the need for any
corroborating evidence. See id. Also, Texas courts have recognized written
judicial confessions as providing necessary proof of prior convictions for state
sentence enhancement purposes. See, e.g., Walls v. Texas, No. 06-04-00009-CR,
2004 WL 1440619 at *4 (Tex. App.-Texarkana June 29, 2004) (unpublished).
Accordingly, we regard a written judicial confession as the type of reliable and
accurate judicial record the Shepard court indicated that a federal court may
rely upon in an effort to determine the nature of the Texas offense to which
Garcia previously pleaded guilty. Cf. United States v. Neri-Hernandes, 504 F.3d
587, 591-92 (finding that New York Certificates of Disposition have sufficient
indicia of reliability to act as judicial records of a defendant’s offense of
conviction). Therefore, we consider the indictment, judgment, and judicial
confession to determine whether Garcia’s offense of conviction constitutes a drug
trafficking offense.
Garcia’s indictment charges him with knowing and intentional delivery,
to-wit: “actua[l] transfer, constructiv[e] transfer and offer to sell a controlled
substance, to-wit: COCAINE, in an amount by aggregate weight, including any
adulterants or dilutants, of less than 1 gram to S. HARRIS.” The judgment
states simply that the offense of conviction was unlawful delivery of a controlled
substance. While the indictment charges facts in the conjunctive that would
meet the definition of a drug trafficking offense, the indictment’s conjunctive
charge alone does not require that Garcia pleaded guilty to the facts in the
conjunctive, since each charge individually could sustain a conviction for delivery
under § 481.112. See Morales-Martinez, 496 F.3d at 358-360 (noting that a
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No. 06-11276
Texas conviction for unlawful delivery may be sustained solely upon proof of an
offer to sell, even when the indictment charges further unlawful conduct in the
conjunctive).
Were we confined to the indictment and judgment alone, Garcia’s sentence
enhancement would be improper. However, in Garcia’s case, the judicial
confession clears up any ambiguity presented by the indictment and judgment.
In his written judicial confession, Garcia confesses that he did “knowingly and
intentionally deliver, to-wit, actually transfer, constructively transfer and offer
to sell a controlled substance.” (emphasis added). He also confessed that he
“committed the offense with which [he] stand[s] charged exactly as alleged in the
indictment in this case.” Because Garcia’s confession establishes that he
possessed, transferred and offered to sell a controlled substance, his prior
conviction qualifies as a drug trafficking offense under the guidelines. As a
result, Garcia has not shown that the district court’s enhancement constitutes
error, plain or otherwise. Because we find no error, we need not reach the
remaining elements in our plain error analysis.
In light of Apprendi v. New Jersey, 530 U.S. 466 (2000), Garcia challenges
the constitutionality of § 1326(b)’s treatment of prior felony and aggravated
felony convictions as sentencing factors rather than elements of the offense that
must be found by a jury. This argument is foreclosed by Almendarez-Torres v.
United States, 523 U.S. 224, 235 (1995). See United States v. Pineda-Arrellano,
492 F.3d 624, 625 (5th Cir. 2007), cert. denied, 2008 WL 59441 (Jan. 7, 2008)
(No. 07-6202).
For the foregoing reasons, we AFFIRM the sentence imposed by the
district court.
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