Unpublished Opinion Holds TX Delivery of Controlled Substance Is Not Categorically An Aggravated Felony

United States v. Fuentes, No. 06-20325 (5th Cir. Aug. 8, 2007) (unpublished) (per curiam) (Higginbotham, Garza, Benavides)

Under United States v. Gonzales, the Texas offense of delivery of a controlled substance is not categorically a "drug trafficking offense" for purposes of the 12- or 16-level enhancements in guideline §2L1.2(b)(1)(A)(i) and (b)(1)(B). But what about the 8-level "aggravated felony" enhancement under (b)(1)(C)? The aggravated felony definition is broader than the §2L1.2 drug-trafficking definition.

Fuentes holds that Texas delivery is not categorically aggravated felony. Unfortunately, the court doesn't lay out its reasoning as clearly as it could (it is an unpublished case, after all). So to understand the basis for the holding you have to look up a Ninth Circuit case cited in footnote 2: United States v. Rivera-Sanchez, 247 F.3d 905, 908-09 (9th Cir. 2001) (en banc). Once you do that, the reasoning emerges:

1. An offense is an aggravated felony if it would be punishable as a felony under the federal Controlled Substances Act.
2. As the Ninth Circuit held in Rivera-Sanchez, a mere offer to sell drugs is not punishable under the CSA and is therefore not an aggravated felony.
3. The Texas delivery definition includes offers to sell, so it's not categorically an aggravated felony.

The Government hadn't argued otherwise. Instead, it made a convoluted argument that Fuentes was convicted of what would constitute an offer to sell drug paraphernalia (an offense under 21 U.S.C. § 863(a)(1)), because the charging papers alleged that he offered to sell adulterants and dilutants, which count as drug paraphernalia under the CSA. The court rejected that argument on the ground that the adulterant-and-dilutant allegation

does not mean that there necessarily were adulterants and dilutants; rather, it only means that if there were adulterants and dilutants, they were counted toward the total aggregate weight of the cocaine. Therefore, Fuentes’s conviction and the criminal information do not necessitate a finding that Fuentes offered to sell drug paraphernalia, and the district court erred in applying a sentencing enhancement for a prior conviction of an “aggravated felony” under U.S.S.G. § 2L1.2(b)(1)(C).