United States v. Mosso-Guzman

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED June 16, 2009 No. 08-50684 Conference Calendar Charles R. Fulbruge III Clerk UNITED STATES OF AMERICA Plaintiff-Appellee v. RAUL MOSSO-GUZMAN Defendant-Appellant Appeal from the United States District Court for the Western District of Texas USDC No. 3:07-CR-3216-ALL Before SMITH, BENAVIDES, and HAYNES, Circuit Judges. PER CURIAM:* Raul Mosso-Guzman pleaded guilty to illegal reentry after deportation in violation of 8 U.S.C. § 1326 and was sentenced to 71 months of imprisonment and three years of supervised release. Mosso-Guzman argues that the district court plainly erred in applying the 16-level enhancement of U.S.S.G. § 2L1.2(b)(1)(A)(i) based on his prior conviction under California Health and Safety Code § 11352. He argues that his sentence was enhanced in plain * Pursuant to 5 TH C IR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR. R. 47.5.4. No. 08-50684 contravention of United States v. Garza-Lopez, 410 F.3d 268, 273-74 (5th Cir. 2005), in which this court held that California Health and Safety Code § 11379(a), which criminalized offers to sell a controlled substance, was overbroad and encompassed activity that did not fall within the definition of “drug trafficking offense” under § 2L1.2. Because Mosso-Guzman did not object to the 16-level enhancement in the district court, we review for plain error. See United States v. Ochoa-Cruz, 442 F.3d 865, 866-67 (5th Cir. 2006). To show plain error, the appellant must show a forfeited error that is clear or obvious and that affects his substantial rights. Puckett v. United States, 129 S. Ct. 1423, 1429 (2009). If the appellant makes such a showing, we have the discretion to correct the error but only if it seriously affects the fairness, integrity, or public reputation of judicial proceedings. Id. The district court applied the 16-level enhancement based on Mosso- Guzman’s conviction under California Health and Safety Code § 11351.5, not § 11352. In United States v. Palacios-Quinonez, 431 F.3d 471, 474-77 (5th Cir. 2005), we held that the offense conduct constituting a violation of § 11351 is a “drug trafficking offense” within the meaning of § 2L1.2(b)(1)(A)(i). The two statutes are identical in that both criminalize the possession for sale or the purchase for purposes of sale, except for the fact that § 11351 applies to controlled substances in general and § 11351.5 applies to cocaine base in particular. There is no basis upon which to distinguish the two statutes for purposes of applying the holding of Palacios-Quinonez to § 11351.5. The district court clearly applied the 16-level enhancement based on the conviction under § 11351.5. The district court did not plainly err in doing so. AFFIRMED. 2