USA v. Darwin Sierra-Arrazola
UNPUBLISHED OPINION FILED. [11-40426 Affirmed ] Judge: JLW , Judge: CES , Judge: CH Mandate pull date is 12/02/2011 for Appellant Darwin Sierra-Arrazola [11-40426]
Date Filed: 11/11/2011
IN THE UNITED STATES COURT OF APPEALS
United States Court of Appeals
FOR THE FIFTH CIRCUIT
November 11, 2011
Lyle W. Cayce
UNITED STATES OF AMERICA,
DARWIN SIERRA-ARRAZOLA, also known as Darwin Omar Sierra-Arrazola,
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:10-CR-2495-1
Before WIENER, STEWART, and HAYNES, Circuit Judges.
Defendant-Appellant Darwin Sierra-Arrazola (Sierra) appeals the 24month sentence imposed following his guilty plea conviction for illegal reentry.
See 8 U.S.C. § 1326. He contends that the district court erred in applying the 12
level enhancement in U.S.S.G. § 2L1.2(b)(1) based on his 2010 Utah drug
conviction, arguing that the Utah conviction does not qualify as a “drug
trafficking offense” on which the enhancement can be based. He insists that the
Utah statute of conviction may be violated in ways that do not qualify as a drug*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
Date Filed: 11/11/2011
trafficking offense under the Guidelines and that the Utah judgment and docket
sheet submitted with the presentence report do not provide a sufficient basis
under Shepard v. United States, 544 U.S. 13 (2005) for determining that his
conviction was for a drug-trafficking offense.
Based on the Utah judgment of conviction, the district court ruled that
Sierra had been convicted of distribution of a controlled substance. At the
sentencing hearing, Sierra admitted that he had been charged and convicted in
Utah because he had sold crack cocaine to an undercover police officer. This
admitted conduct constitutes distribution of a controlled substance and falls
within § 2L1.2's definition of a drug trafficking offense. See § 2L1.2, comment.
(n.1(B)(iv)); 21 U.S.C. § 841(a). Sierra’s admission that he distributed crack
cocaine and the information in the Utah judgment are sufficient to establish his
prior conviction for a drug trafficking offense. See United States v. MendozaSanchez, 456 F.3d 479, 483 (5th Cir. 2006); United States v. Garcia-Arrellano,
522 F.3d 477, 480 (5th Cir. 2008). The district court did not err in applying the
12 level enhancement.
Sierra also argues claims he should not have been convicted and sentenced
under § 1326(b)(2) because his sole prior conviction in Utah has not been shown
to qualify as an “aggravated felony.” An aggravated felony is defined in 8 U.S.C.
§ 1101(a) as “illicit trafficking in a controlled substance . . . including a drug
trafficking crime (as defined in section 924(c) of Title 18).” § 1101(a)(43)(B).
Section 924(c) defines a drug trafficking crime as, inter alia, “any felony
punishable under the Controlled Substances Act (21 U.S.C. 801 et seq.).”
Sierra’s prior Utah conviction for distribution of a controlled substance thus
qualifies as an aggravated felony. See § 841(a), and his contention to the
contrary is without merit.
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?