USA v. Adolfo Martinez-Padron, No. 09-10958 (5th Cir. 2010)
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Case: 09-10958 Document: 00511293693 Page: 1 Date Filed: 11/15/2010 IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED No. 09-10958 Summary Calendar November 15, 2010 Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff-Appellee v. ADOLFO MARTINEZ-PADRON, Defendant-Appellant Appeal from the United States District Court for the Northern District of Texas USDC No. 4:09-CR-57-1 Before REAVLEY, DENNIS, and CLEMENT, Circuit Judges. PER CURIAM:* Adolfo Martinez-Padron (Martinez) appeals the 36-month sentence imposed following his guilty plea conviction of illegal reentry. Martinez argues that the district court improperly enhanced his offense level pursuant to U.S.S.G. § 2L1.2(b)(1)(D) based on its determination that his prior Texas conviction for cocaine possession was a felony as defined by the Sentencing Guidelines. More specifically, Martinez contends that the district court erred because its conclusion that his prior state conviction was for a felony offense * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-10958 Document: 00511293693 Page: 2 Date Filed: 11/15/2010 No. 09-10958 relied exclusively upon the characterization of his offense in the presentence report. Martinez did not object to the characterization of his prior conviction as a felony or challenge the imposition of the four-level enhancement under § 2L1.2(b)(1)(D). Accordingly, we review only for plain error. United States v. Garcia-Arellano, 522 F.3d 477, 480 (5th Cir. 2008). Our determination whether there is error is based on the record before us as supplemented with the state-court documents related to Martinez s prior conviction. Id. Guideline § 2L1.2 provides for a four-level increase if the defendant has been previously convicted of a felony offense. § 2L1.2(b)(1)(D). State-court documents for Martinez s prior conviction, with which the Government has supplemented the record on appeal, show that Martinez pleaded guilty to possession of less than one gram of cocaine, a violation of T EX. H EALTH & S AFETY C ODE A NN. § 481.115(b). This offense is a state jail felony punishable by no less than 180 days nor more than two years in prison. See § 481.115(b); T EX. P ENAL C ODE A NN. § 12.35(a). Accordingly, the offense qualifies as a felony for purposes of § 2L1.2. § 2L1.2, comment. (n.2); United States v. Rivera-Perez 322 F.3d 350, 352 (5th Cir. 2003). The application of the four-level enhancement was not error, plain or otherwise. AFFIRMED. 2
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