United States v. Gutierrez-Ortiz

86 F. App'x 729

• Court: Court of Appeals for the Fifth Circuit
• Decided: February 6, 2004
• Docket: 03-50807
• Status: Unpublished

Opinion

PER CURIAM. *

Edgar Alonso Gutierrez-Ortiz (Gutierrez) appeals the 41-month sentence imposed following his guilty-plea conviction of attempted illegal re-entry of a deported alien. Gutierrez contends that the district court erred in increasing his offense level under U.S.S.G. § 2L1.2(b)(l)(A). He asserts that his prior conviction for violating 21 U.S.C. § 843(b) is not a “drug trafficking offense.”

An element of a 21 U.S.C. § 843(b) offense is the defendant’s commission of an independent drug crime or facilitation of such a crime. United States v. Mankins, 135 F.3d 946, 949 (5th Cir.1998). Gutierrez’s prior conviction was for use of a telephone to distribute heroin. Accordingly, we affirm the district court’s imposition of the 16-level increase in Gutierrez’s offense level based on his previously having committed a drug trafficking offense. Id.; see United States v. Orihuela, 320 F.3d 1302 (11th Cir.2003).

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* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.