USA v. Antillon-Perez

Filing 920091118

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
No. 09-50038 Summary Calendar November 18, 2009 Charles R. Fulbruge III Clerk

UNITED STATES OF AMERICA, Plaintiff-Appellee v. ADAN ANTILLON-PEREZ, also known as Alfredo Gomez-Antillon, also known as Adam Tena Antillon, also known as Alejandro Ibarra-Tena, Defendant-Appellant

Appeal from the United States District Court for the Western District of Texas USDC No. 3:08-CR-2240-1

Before KING, STEWART, and HAYNES, Circuit Judges. PER CURIAM:* Adan Antillon-Perez (Antillon) appeals his guilty plea conviction for attempted illegal reentry following deportation in violation of 8 U.S.C. § 1326. The district court sentenced him to 46 months of imprisonment after imposing a 16-level enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(i) for a prior drug trafficking offense, specifically, possession with intent to distribute more than 500 grams of cocaine.

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 09-50038 Antillon contends that the evidence was insufficient to establish his prior federal drug conviction. Because he did not raise this objection in the district court, we review only for plain error. See United States v. Mondragon-Santiago, 564 F.3d 357, 364 (5th Cir.), cert. denied, 2009 WL 1849974 (Oct. 5, 2009). Antillon has failed to establish plain error because the evidence with which the Government supplemented the record on appeal demonstrates that in 2003 Antillon was convicted of possession with intent to distribute more than 500 grams of cocaine in violation of 21 U.S.C. § 841(a)(1) and sentenced to 30 months of imprisonment. A comparison of the statute and the Guideline at issue shows that a conviction under § 841(a)(1) qualifies as a drug trafficking offense under § 2L1.2(b)(1)(A)(i). See § 841(a)(1); § 2L1.2, comment. (n.1(B)(iv)). The judgment of the district court is AFFIRMED.

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