Panel Reverses Itself in Ford; Now Holds Possession with Intent to Offer to Sell is a Drug Trafficking/Controlled Substance Offense

United States v. Ford, No. 06-20142 (5th Cir. Dec. 11, 2007) (Davis, Prado; Dennis, dissenting)

As you'll recall, back in May the panel in this case held unanimously that the Texas offense of possession of a controlled substance with intent to deliver is not a "controlled substance offense" as defined in guideline §4B1.2. That's because 1) the Texas definition of "delivery" includes an offer to sell a controlled substance, 2) prior Fifth Circuit opinions have held that an offer to sell lies outside the virtually identical "drug trafficking offense" definition in guideline §2L1.2, and 3) if an offer to sell isn't a DTO/CSO, then it logically follows that possession with intent to offer to sell isn't a DTO/CSO, either.

Six-and-a-half months later, the panel has changed its mind. It now holds that the offer-to-sell precedent isn't controlling because "the conviction here was for possession with intent to deliver rather than just delivery or transportation." Apparently relying on colloquial understandings of "delivery" and "distribute," rather than the actual language of the Texas "delivery" definition, the court "agree[s] with the government that it is pure sophistry to distinguish between the conduct of one who possesses drugs with intent to deliver those drugs and one who possesses drugs with intent to distribute them."

The controlling case, according to the court, is United States v. Palacios-Quinonez, which held that a California statute prohibiting the purchase of a controlled substance for the purpose of selling it is equivalent to possession with intent to distribute and therefore a DTO. Palacios-Quinonez distinguished the offer-to-sell cases on the ground that it's possible to offer to sell drugs without possessing them, but that a purchase for sale requires the actual or constructive possession of drugs. Therefore,

[f]or purposes of qualifying as a controlled substance offense, Ford’s conduct is indistinguishable from Palacios’ conduct. Ford possessed drugs with intent to deliver or pass them on to another. Palacios purchased drugs (and thereby actually or constructively possessed them) and intended to sell them to another. The conduct in both instances is equivalent to the drug trafficking offense, possession of a controlled substance with intent to distribute.

Judge Dennis, who authored the original panel opinion, dissents. He covers a lot of ground, but here's the core of his disagreement (sans citations):

[T]he majority attempts to (mis)characterize Ford’s “intent to deliver” as an “intent to distribute.” The majority concludes quite summarily that “Ford possessed drugs with intent to deliver or pass them on to another.” (emphasis added). The majority obviously believes and desires to characterize Ford as intending to “pass” drugs onto another, which is “distribution” for federal sentencing purposes. However, no document informs this panel that Ford was convicted for intending to “pass” controlled substances. He was only convicted for an “intent to deliver controlled substances,” which includes an intent to “offer to sell controlled substances.” Gonzales clearly forbids us today to characterize the term “delivery” in this Texas statute as necessarily including the “passing” of controlled substances to another, i.e., actually or constructively transferring controlled substances to another. Gonzales logically requires us today to consider Ford’s conviction as possession with intent to offer to sell and not, as the majority desires, a conviction that implicates an intent to actually or constructively transfer controlled substances.

In essence, the majority opinion is asking us to disregard precedent concluding that “a disjunctive statute may be pleaded conjunctively and proven disjunctively.” The majority now recharacterizes Ford’s guilty plea as necessarily convicting him of possession with intent to transfer, rather than with intent to offer to sell, although the latter is the only intent or offense imputable to him under the Taylor categorical approach. Thus, the majority disregards Gonzales and an established line of precedent under which we are required to assume that the conviction was necessarily established under only the least culpable of the disjunctive possibilities, i.e., possession with intent to offer to sell.

Judge Dennis makes several other points, as well. He responds effectively to the majority's ill-advised adoption of the Government's "sophistry" rhetoric by counting noses and finding that a majority of Fifth Circuit judges have signed on to opinions employing Ford's original reasoning: "[B]y pejoratively calling the reasoning of our original panel opinion 'sophistry,' the new majority here is hurling the epithet of 'sophist' at no less than a majority of this court, including all members of this panel."

Judge Dennis also points out that the new-and-improved Ford will lead to anomolous results. Under Texas law, possession with intent to deliver is a lesser-included offense of delivery. Thus, under Ford redux "a Texas culprit who possesses drugs with intent to offer them for sale is exposed to USSG enhancement while a Texas criminal who is guilty of the greater and more serious crime of delivery of drugs is not."