United States v. Ariboinote

308 F. App'x 788

• Court: Court of Appeals for the Fifth Circuit
• Decided: January 27, 2009
• Docket: 07-31181
• Status: Unpublished

Opinion

PER CURIAM: *

Jean G. Ariboinote appeals the sentence imposed following his guilty plea conviction for illegal reentry into the United States after removal following an aggravated felony conviction. He argues that the district court plainly erred in enhancing his sentence pursuant to U.S.S.G. § 2L1.2(b)(l)(B) based on his prior Florida deferred adjudication for a drug offense. Because Ariboinote did not raise this issue in the district court, review is limited to plain error. See United States v. Baker, 538 F.3d 324, 332 (5th Cir.2008). To show plain error, the appellant must show an error that is clear or obvious and that affects his substantial rights. Id. If the appellant makes such a showing, this court has the discretion to correct the error but only if it seriously affects the fairness, integrity, or public reputation of judicial proceedings. Id.

The district court erred in enhancing Ariboinote’s sentence based solely on the information in the Presentence Report concerning his prior Florida drug conviction. See United States v. Ochoa-Cruz, 442 F.3d 865, 867 (5th Cir.2006); see also United States v. Garza-Lopez, 410 F.3d 268, 274 (5th Cir.2005). Further, the error was clear and obvious under current law. See Ochoa-Cruz, 442 F.3d at 867.

Ariboinote has not shown that this error affected his substantial rights. As Ariboi-note concedes, his Florida conviction for the sale, manufacture, or delivery of cocaine under Fla. Stat. Ann. § 893.13(l)(a), on which the § 2L1.2(b)(l)(B) enhancement was based, constitutes a drug trafficking offense as defined by the commentary to § 2L1.2. See § 2L1.2, comment, (n. l(B)(iv)). Therefore, Ariboinote cannot show that he would have received a lesser sentence but for the error as required by Ochoa-Cruz, 442 F.3d at 867.

Ariboinote has not shown that the district court erred in enhancing his sentence because his Florida conviction was a deferred adjudication. We have held that a deferred adjudication is a conviction for purposes of § 2L1.2(b)(l)(B). United States v. Ramirez, 367 F.3d 274, 277(5th Cir.2004); United States v. Valdez-Valdez, 143 F.3d 196, 198-201 (5th Cir.1998). Ari-boinote argues that if the law were changed to provide that a deferred adjudication is not a conviction for purposes of § 2L1.2, he would be able to show that his substantial rights were affected. The plain error standard is not satisfied if existing precedent must be extended to recognize the alleged error. United States v. Williamson, 183 F.3d 458, 464 (5th Cir. 1999); see also United States v. Hull, 160 F.3d 265, 272 (5th Cir.1998). Certainly it is not met if an appellant argues for a change to existing precedent.

AFFIRMED.

* 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.