USA v. Lino Cabrera-Torre


UNPUBLISHED OPINION FILED. [16-50195 Affirmed ] Judge: PEH , Judge: EHJ , Judge: JES Mandate issue date is 04/03/2018 for Appellant Lino Cabrera-Torres [16-50195]

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Case: 16-50195 Document: 00514382881 Page: 1 Date Filed: 03/12/2018 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 16-50195 Summary Calendar United States Court of Appeals Fifth Circuit FILED March 12, 2018 Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff-Appellee v. LINO CABRERA-TORRES, Defendant-Appellant Appeals from the United States District Court for the Western District of Texas USDC No. 2:15-CR-860-1 Before HIGGINBOTHAM, JONES, and SMITH, Circuit Judges. PER CURIAM: * Lino Cabrera-Torres appeals his 41-month, within-guidelines sentence for illegal reentry. Specifically, he challenges the district court’s assessment of a 16-level “drug trafficking” enhancement, under former U.S.S.G. § 2L1.2(b)(1)(A)(i), based on his prior Minnesota conviction for selling methamphetamine. See MINN. STAT. ANN. § 152.021(1)(2). Because CabreraTorres did not object to the district court’s guidelines calculation, we review 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 16-50195 Document: 00514382881 Page: 2 Date Filed: 03/12/2018 No. 16-50195 this issue for plain error. See Puckett v. United States, 556 U.S. 129, 135 (2009). To qualify as an enhanceable prior “drug trafficking” conviction under former § 2L1.2, the statutory elements of the relevant Minnesota drug sale offense must be congruent with or narrower than those of the “generic” crime of drug trafficking, which prohibits, relevantly, “the manufacture, import, export, distribution, or dispensing of, or offer to sell a controlled substance.” § 2L1.2, comment. (n.1(B)(iv)) (2015); see United States v. Martinez-Lugo, 782 F.3d 198, 203 (5th Cir. 2015). Cabrera-Torres contends that Minnesota’s drug sale statute punishes a broader swath of conduct than “generic” drug trafficking because it defines “sell” to include delivering or offering to deliver a controlled substance for no remuneration. We have previously rejected such an argument. See Martinez-Lugo, 782 F.3d at 201-05 (rejecting contention that Georgia’s drug sale statute is overbroad because it criminalizes an intent to distribute drugs for no remuneration). In the wake of Martinez-Lugo, we have repeatedly upheld § 2L1.2(b)(1) “drug trafficking” enhancements based on state statutes that criminalize nonremunerative drug transactions. See, e.g., United States v. Ramirez-Bertran, 611 F. App’x 838, 839 (5th Cir. 2015); United States v. Torres-Rodriguez, 606 F. App’x 276, 277 (5th Cir. 2015); United States v. Pesina-Arano, 650 F. App’x 185, 187 (5th Cir. 2016). Although these cases are unpublished, they are persuasive authority for affirming the judgment in this case. See Ballard v. Burton, 444 F.3d 391, 401 & n.7 (5th Cir. 2006) (citing 5TH CIR. R. 47.5.4). Given the above, Cabrera-Torres cannot show that, in applying former § 2L1.2 based on his Minnesota drug sale conviction, the district court clearly or obviously erred. See Puckett, 556 U.S. at 135; Henderson v. United States, 2 Case: 16-50195 Document: 00514382881 Page: 3 Date Filed: 03/12/2018 No. 16-50195 586 U.S. 266, 273-77 (2013) (holding that error must be clear or obvious as of the time of appellate review). Accordingly, the judgment of the district court is AFFIRMED. 3

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