Panel Withdraws Opinion Holding that GA Meth "Trafficking" is a 2L1.2 DTO, But Holds That State Guilty Plea Admitted Conduct That Is a DTO

United States v. Gutierrez-Bautista, No. 06-40486 (5th Cir. Oct. 31, 2007) (Smith, Weiner, Owen)

The court first decided this case back in July. Gutierrez, who pled guilty to illegal reentry, had a prior Georgia conviction for "trafficking" in methamphetamine. Although the state statute is captioned "trafficking," it includes simple possession, as long as the amount of meth exceeds 28 grams. The first time around, the court held that the state statute was categorically a "drug trafficking offense" under guideline §2L1.2, reasoning that the statute infers an intent to distribute from the quantity of meth possessed. For reasons explained here, that decision was incorrect, and its reasoning conflicted with several unpublished decisions interpreting a similar statutory scheme from another state. The panel has now withdrawn its original opinion, albeit without explaining why, and substituted a new one in its stead that affirms the sentence based on different reasoning.

Gutierrez had pled guilty to an indictment that alleged that he both sold and possessed more than 28 grams of meth. Under the recent decision in United States v. Morales-Martinez, the court must look to state law to determine the effect of the guilty plea. Georgia law allows conjunctive pleading and disjunctive proof, so because the indictment alleged that Gutierrez sold and possessed meth, the state could have proven the offense by showing that he either sold or possessed meth. But according to the court, "Georgia law establishes that a guilty plea admits all averments of fact in the indictment or accusation." (emphasis added). Thus, "[u]nder Georgia law, [Gutierrez's] guilty plea admits that he both sold and possessed the drug." And since selling drugs is a DTO, the enhancement applied.

The court also rejected Gutierrez's Apprendi challenge to the § 1326(b) enhancement, stating (incorrectly) that the Supreme Court reaffirmed Almendarez-Torres in James v. United States, and (correctly) that "[s]ince James, this court has said that arguments like Gutierrez-Bautista’s 'will be viewed with skepticism, much like arguments challenging the constitutionality of the federal income tax' and that 'this issue is "fully foreclosed from further debate."'" That's Pineda-Arrellano, of course, and the cert petition in that case is still pending. The Court requested a response from the Solicitor General, and that's currently due by November 14th.