United States v. Mosso-Guzman , 334 F. App'x 632 ( 2009 )

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should not be published and is not precedent except under the limited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.
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