United States v. Ariboinote , 308 F. App'x 788 ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
January 27, 2009
No. 07-31181
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
JEAN G ARIBOINOTE, also known as Jean Aiboinote, also known as Jean
Airport, also known as Jean Ariboinche, also known as Jean Ariboinote, also
known as Jean Beynorth, also known as Jean Beynortn, also known as Wesley
Boinote, also known as Wisley Boinote, also known as Jean Bonette, also known
as Jean Byenorth, also known as Jean Geurson Byenorth, also known as Jean
Byenortn, also known as Jean Eriss, also known as Jean Erris, also known as
Jean Airointe, also known as Jean G Byenorth, also known as Jeamard Lewis,
also known as Jean Lewis, also known as Jeanard Lewis, also known as Jeanard
Louis, also known as Jean Pierre, also known as James Wright
Defendant-Appellant
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:07-CR-241-1
Before KING, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
*
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should not be published and is not precedent except under the limited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.
No. 07-31181
Jean G. Ariboinote appeals the sentence imposed following his guilty plea
conviction for illegal reentry into the United States after removal following an
aggravated felony conviction. He argues that the district court plainly erred in
enhancing his sentence pursuant to U.S.S.G. § 2L1.2(b)(1)(B) based on his prior
Florida deferred adjudication for a drug offense. Because Ariboinote did not
raise this issue in the district court, review is limited to plain error. See United
States v. Baker, 538 F.3d 324, 332 (5th Cir. 2008). To show plain error, the
appellant must show an error that is clear or obvious and that affects his
substantial rights. Id. If the appellant makes such a showing, this court has 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 erred in enhancing Ariboinote’s sentence based solely on
the information in the Presentence Report concerning his prior Florida drug
conviction. See United States v. Ochoa-Cruz, 442 F.3d 865, 867 (5th Cir. 2006);
see also United States v. Garza-Lopez, 410 F.3d 268, 274 (5th Cir. 2005).
Further, the error was clear and obvious under current law. See Ochoa-Cruz,
442 F.3d at 867.
Ariboinote has not shown that this error affected his substantial rights.
As Ariboinote concedes, his Florida conviction for the sale, manufacture, or
delivery of cocaine under FLA. STAT. ANN. § 893.13(1)(a), on which the
§ 2L1.2(b)(1)(B) enhancement was based, constitutes a drug trafficking offense
as defined by the commentary to § 2L1.2. See § 2L1.2, comment. (n.1(B)(iv)).
Therefore, Ariboinote cannot show that he would have received a lesser sentence
but for the error as required by Ochoa-Cruz, 442 F.3d at 867.
Ariboinote has not shown that the district court erred in enhancing his
sentence because his Florida conviction was a deferred adjudication. We have
held that a deferred adjudication is a conviction for purposes of § 2L1.2(b)(1)(B).
United States v. Ramirez, 367 F.3d 274, 277(5th Cir. 2004); United States v.
Valdez-Valdez, 143 F.3d 196, 198-201 (5th Cir. 1998). Ariboinote argues that if
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No. 07-31181
the law were changed to provide that a deferred adjudication is not a conviction
for purposes of § 2L1.2, he would be able to show that his substantial rights were
affected. The plain error standard is not satisfied if existing precedent must be
extended to recognize the alleged error. United States v. Williamson, 183 F.3d
458, 464 (5th Cir. 1999); see also United States v. Hull, 160 F.3d 265, 272 (5th
Cir. 1998). Certainly it is not met if an appellant argues for a change to existing
precedent.
AFFIRMED.
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