UNITED STATES of America, Plaintiff-Appellee v. Mario Alberto GARCIA-BALDERAS, Defendant-Appellant, 326 F. App'x 745

PER CURIAM: DefendanL-Appellant Mario Alberto Garcia-Balderas appeals his 77-month sentence of imprisonment following his guilty-plea conviction for illegal reentry following deportation. Garcia-Balderas contends that the district court erred in calculating the advisory guidelines sentencing range when the district court imposed a 16-level adjustment under U.S.S.G. § 2L1.2(b)(l)(A), based on a prior state conviction.

The district court based the adjustment on Garcia-Balderas’s Texas state conviction for delivery of marijuana in amount of more than 50 pounds but less than 200 pounds, or a Texas state conviction for aggravated assault. Garcia-Balderas has failed to establish plain error because the evidence with which the government supplemented the record on appeal demonstrates that Garcia-Balderas was convicted of delivery by actual transfer of marijuana, an offense that qualifies as a drug trafficking offense under § 2L1.2(b)(l)(A). See United States v.

Garcia-Arellano, 522 F.3d 477, 481 (5th Cir.), cert. denied, — U.S. —, 129 S.Ct. 353, 172 L.Ed.2d 138 (2008); United States v. Gonzales, 484 F.3d 712, 714-15 (5th Cir.), cert. denied, 551 U.S. 1156, 127 S.Ct. 3031, 168 L.Ed.2d 748 (2007). As Garcia-Balderas failed to demonstrate plain error in the application of the enhancement on the basis of the drug offense, we do not consider the other possible basis for the enhancement, viz., the aggravated assault. See United States v. Jackson, 453 F.3d 302, 308 n. 11 (5th Cir.2006). 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R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.