United States v. Bidal Avitia-Salazar , 598 F. App'x 331 ( 2015 )

Case: 13-41232 Document: 00512985474 Page: 1 Date Filed: 03/30/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 13-41232 FILED
Summary Calendar March 30, 2015
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
BIDAL ALBERTO AVITIA-SALAZAR,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:13-CR-989-1
Before PRADO, OWEN, and GRAVES, Circuit Judges.
PER CURIAM: *
Bidal Alberto Avitia-Salazar appeals the 57-month within-guidelines
sentence imposed in connection with his conviction for illegal reentry after
deportation. Avitia-Salazar challenges the 16-level enhancement under
U.S.S.G. § 2L1.2(b)(1)(A)(i) for a drug trafficking offense based on his prior
California conviction for possession of a controlled substance for sale, as
proscribed by California Health and Safety Code § 11378. He contends that
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
Case: 13-41232 Document: 00512985474 Page: 2 Date Filed: 03/30/2015
No. 13-41232
the offense is not categorically a drug trafficking offense because California
includes certain substances as controlled substances that are not considered
controlled substances under federal law. Avitia-Salazar further asserts that,
under the modified categorical approach, the Government did not meet its
burden to show that his prior conviction involved a controlled substance as
defined by federal law. Specifically, he argues that the waiver of rights form,
the minute order, and the abstract of judgment make no mention of the
substance he possessed and that the felony complaint, which identifies the
substance as methamphetamine, is not sufficiently reliable because it might
not have been the charging instrument.
Though he objected to the enhancement and made the general assertion
that the state court documents were insufficient, Avitia-Salazar did not argue,
as he does on appeal, that the state felony complaint was not the charging
document to which he entered his plea. Avitia-Salazar’s objections did not
sufficiently apprise the court of the basis of the challenge to the enhancement
he now asserts on appeal. See United States v. Musa, 45 F.3d 922, 924 n.5 (5th
Cir. 1995). Therefore, the issue is subject to plain error review. See United
States v. Chavez-Hernandez, 671 F.3d 494, 497-98 (5th Cir. 2012). Because the
felony complaint shows that Avitia-Salazar was charged with possessing
methamphetamine for sale and because the state court record “reasonably
indicate[s] the absence” of a superseding information or indictment, the district
court did not plainly err in applying the 16-level enhancement under
§ 2L1.2(b)(1)(A)(i). United States v. Castellon-Aragon, 772 F.3d 1023, 1026 (5th
Cir. 2014).
The judgment of the district court is AFFIRMED.
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