USA v. Christopher Gilbertson

Filing

UNPUBLISHED OPINION FILED. [12-50610 Affirmed ] Judge: JES , Judge: ECP , Judge: SAH Mandate pull date is 08/21/2013 for Appellant Christopher Gilbertson [12-50610]

Case: 12-50610

Document: 00512327080

Page: 1

Date Filed: 07/31/2013

IN THE UNITED STATES COURT OF APPEALS
United States Court of Appeals
FOR THE FIFTH CIRCUIT
Fifth Circuit

FILED
No. 12-50610
Summary Calendar

July 31, 2013
Lyle W. Cayce
Clerk

UNITED STATES OF AMERICA,
Plaintiff–Appellee,
versus
CHRISTOPHER GILBERTSON,
Defendant–Appellant.

Appeal from the United States District Court
for the Western District of Texas
No. 7:11-CR-212-3

Before SMITH, PRADO, and HIGGINSON, Circuit Judges.
PER CURIAM:*

Christopher Gilbertson appeals the 189-month sentence imposed on his
guilty-plea conviction of one count of intentionally and knowingly participating
*

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-50610

Document: 00512327080

Page: 2

Date Filed: 07/31/2013

No. 12-50610
in a racketeering conspiracy. He contends that the district court erred in determining that his prior conviction of distribution of marihuana, in violation of New
Mexico Statute § 30-31-22(A), was a controlled-substance offense (“CSO”) for
purposes of the career-offender provisions of United States Sentencing Guidelines § 4B1.1. According to Gilbertson, the state offense could have been committed by a mere offer to sell without possession of a controlled substance, an act
that is not within the pertinent definition of a CSO.
We ordinarily review the district court’s interpretation or application of
the guidelines de novo. United States v. Cisneros-Gutierrez, 517 F.3d 751, 764
(5th Cir. 2008). Although Gilbertson argued in the district court that the New
Mexico statute did not meet the definition of a CSO, he did not alert the district
court to any concerns related to the statute’s inclusion of the term “attempted
transfer” insofar as the statute maySSas Gilbertson now arguesSSinclude mere
offers to sell. Thus, his challenge to the application of the career-offender provisions is reviewed for plain error. See United States v. Chavez-Hernandez, 671
F.3d 494, 497-99 (5th Cir. 2012); see also Puckett v. United States, 556 U.S. 129,
135 (2009).
Gilbertson has not shown that the district court plainly erred in applying
the career-offender provisions of § 4B1.1 based on his New Mexico conviction.
The application notes to § 4B1.2 expressly provide that “‘controlled substance
offense’ include[s] the offenses of aiding and abetting, conspiring, and attempting
to commit such offenses.” § 4B1.2 comment. (n.1). Thus, Gilbertson has not demonstrated that the statutory language of § 30-31-22(A) includes conduct that falls
outside the definition of a CSO under § 4B1.2(b).
Accordingly, the judgment of sentence is AFFIRMED.

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