United States v. Martinez-Vidana, No. 15-40470 (5th Cir. 2016)Annotate this Case
Defendant was convicted of reentering the United States after deportation and appealed his 50-month sentence. The court concluded that the district court did not plainly err in applying a 16-level enhancement for a prior “drug trafficking offense” under USSG 2L1.2(b)(1)(A)(i), which the district court based on his prior conviction under 18 U.S.C. 2 and 21 U.S.C. 843(b) for aiding and abetting the use of a communication facility to facilitate a felony drug offense. Because the underlying drug offense must be proven beyond a reasonable doubt, there is no question that it is an “element” for purposes of United States v. Descamps, rendering section 843(b) divisible and allowing the application of the modified categorical approach. Accordingly, the court affirmed the judgment.