USA v. Noe Zepeda-Rangel, No. 14-40629 (5th Cir. 2015)

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Case: 14-40629 Document: 00513107227 Page: 1 Date Filed: 07/07/2015 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 14-40629 Summary Calendar United States Court of Appeals Fifth Circuit FILED July 7, 2015 Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff–Appellee, versus NOE ZEPEDA-RANGEL, Defendant–Appellant. Appeal from the United States District Court for the Southern District of Texas USDC No. 2:14-CR-70-1 Before DAVIS, SMITH, and WIENER, Circuit Judges. PER CURIAM: * Noe Zepeda-Rangel appeals the 32-month imprisonment imposed on his guilty-plea conviction of being found unlawfully present in the United States following deportation. He contends that the district court erroneously applied 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 14-40629 Document: 00513107227 Page: 2 Date Filed: 07/07/2015 No. 14-40629 the 16-level enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(i) based on his state conviction of trafficking heroin. Relying on Moncrieffe v. Holder, 133 S. Ct. 1678 (2013), he claims that the statute under which he was convicted encompasses conduct that is broader than the definition of a “drug trafficking offense” within the meaning of § 2L1.2 because it criminalizes the distribution or transportation of heroin without remuneration. Because Zepeda-Rangel objected to the enhancement, we review de novo the legal question whether the conviction qualifies as a drug-trafficking offense under § 2L1.2. See United States v. Teran-Salas, 767 F.3d 453, 457 (5th Cir. 2014), cert. denied, 135 S. Ct. 1892 (2015). An enhancement under § 2L1.2(b)(1)(A)(i) for a drug-trafficking conviction is warranted regardless of whether it required proof of remuneration or commercial dealing. See United States v. Martinez-Lugo, 782 F.3d 198, 204-05 (5th Cir. 2015). In view of Martinez-Lugo, Zepeda has failed to show that the district court erred in enhancing his offense level. AFFIRMED. 2

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