UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

JAVIER MENDOZA-GUARDIOLA,

Defendant - Appellant.

No. 05-2296

(D. New Mexico)

(D.Ct. No. CR-05-690-JH)

ORDER AND JUDGMENT*

Before HENRY, BRISCOE, and O'BRIEN, Circuit Judges.

After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.

On May 5, 2005, Javier Mendoza-Guardiola pled guilty to one count of illegal reentry following deportation in violation of 8 U.S.C. § 1326(a). The district court sentenced him to twenty-four months' imprisonment. That sentence was in accord with the recommendation in the Presentence Investigation Report (PSR), which recommended a twelve-level enhancement because the defendant had a prior felony drug trafficking conviction.1 See United States Sentencing Commission, Guidelines Manual, § 2L1.2(b)(1)(B) (2004). Defendant objected to the PSR, arguing that he was not subject to the twelve-level enhancement because his prior felony conviction, although an "aggravated felony," was not a felony "drug trafficking offense" for purposes of USSG §2L1.2(b)(1)(B). The district court disagreed. It also rejected Mendoza-Guardiola's argument that a sentence within the applicable guideline range was unreasonable and denied his request for a downward departure. Judgment was entered on September 2, 2005. Mendoza-
Guardiola timely appealed. He raises the same argument on appeal that he did below, i.e., his prior conviction was not a "felony drug trafficking offense," and adds that the district court's sentence was unreasonable. We exercise jurisdiction under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291 and AFFIRM.

Discussion:

We review the district court's application and interpretation of the Sentencing Guidelines de novo. United States v. Chavez-Valenzuela, 170 F.3d 1038, 1039 (10th Cir. 1999). However, we review factual findings for clear error. United States v. Serrata, 425 F.3d 886, 906 (10th Cir. 2005). The classification of a prior conviction is a question of law we review de novo. United States v. Martinez-Villalva, 232 F.3d 1329, 1332 (10th Cir. 2000). We review sentences imposed after United States v. Booker, 543 U.S. 220 (2005), for reasonableness. United States v. Glover, 413 F.3d 1206, 1210 (10th Cir. 2005). We note that the district court "is not required to consider individually each factor listed in § 3553(a) before issuing a sentence." United States v. Kelley, 359 F.3d 1302, 1305 (10th Cir. 2004). "If . . . the district court properly considers the relevant Guidelines range and sentences the defendant within that range, the sentence is presumptively reasonable." United States v. Kristl, 437 F.3d 1050, 1055 (10th Cir. 2006). "The defendant may rebut this presumption by demonstrating that the sentence is unreasonable in light of the other sentencing factors laid out in [18 U.S.C.] § 3553(a)." Id.

Section 2L1.2(b)(1)(B) calls for a twelve-level enhancement to the base offense level if the defendant was deported after having been convicted of a "felony drug trafficking offense for which the sentence imposed was 13 months or less . . . ." The sentencing guidelines define a "[d]rug trafficking offense" as "an offense under federal, state, or local law that prohibits . . . the possession of a controlled substance . . . with intent to distribute . . . ." USSG §2L1.2, comment. (n.1(B)(iv)). To determine whether Mendoza-Guardiola's prior conviction constitutes a "drug trafficking offense," the court must first look to the statutory definition of the crime. See United States v. Reyes-Castro, 13 F.3d 377, 379 (10th Cir. 1993). We employ a "categorical approach" to determine whether Mendoza-Guardiola's prior conviction under 18 U.S.C. § 1952 is a "drug trafficking offense." United States v. Herrera-Roldan, 414 F.3d 1238, 1240-41 (10th Cir. 2005); see also United States v. Martinez-Hernandez, 422 F.3d 1084, 1088 (10th Cir. 2005) (characterizing Herrera-Roldan as applying the categorical approach). By its terms, 18 U.S.C. § 1952 reaches different types of conduct.2 United States v. Rodriquez-Duberney, 326 F.3d 613, 617 (5th Cir. 2003). Thus, the court "may look to the charging paper and judgment of conviction" to determine how the offense should be classified. United States v. Venegas-
Ornelas, 348 F.3d 1273, 1275 (10th Cir. 2003).

The information to which Mendoza-Guardiola pled guilty in the original case specifically alleged he possessed marijuana with the intent to distribute it.3 Although his plea agreement and the judgment may not have mentioned that Mendoza-Guardiola possessed marijuana with the intent to distribute, Mendoza-
Guardiola specifically pled guilty to the information and therefore admitted all the allegations contained therein. United States v. Broce, 488 U.S. 563, 570 (1989); United States v. Hill, 53 F.3d 1151, 1155 (10th Cir. 1995). The allegations in the indictment, to which Mendoza-Guardiola admitted by pleading guilty, are sufficient to establish that his prior conviction was for a "drug trafficking offense." Thus, the district court's imposition of a twelve-level enhancement was not error.4

Nor is Mendoza-Guardiola's sentence unreasonable. Mendoza-Guardiola was sentenced within a correctly calculated guideline range. Thus, the sentence imposed in this case is presumptively reasonable. Kristl, 437 F.3d at 1055. The district court considered and applied the sentencing factors in § 3553(a) and relied heavily upon the fact that Mendoza-Guardiola had not received any criminal history points for his prior conviction. Additionally, the district court deemed Mendoza-Guardiola's "family situation, [] financial situation, [] illegal status, and [] reasons for returning to the United States are not factors that take his case outside of the heartland of cases, of those who are similarly situated" and sentenced him at the bottom of the sentencing range. (R. Vol. III at 35, 36.) Mendoza-Guardiola has failed to adequately rebut the presumption of reasonableness by establishing the sentence was unreasonable in light of the sentencing factors in § 3553(a).

AFFIRMED.

Entered by the Court:

Terrence L. O'Brien

United States Circuit Judge