Possession of Even Large Amount of Controlled Substance Isn't §2L1.2 "Drug Trafficking" If Statute Has No Intent-to-Distribute Element

United States v. Lopez-Salas, No. 06-41637 (5th Cir. Jan. 3, 2008; revised Jan. 30, 2008) (per curiam) (King, Barksdale, Dennis)

Lopez-Salas picks up where Arce-Vences v. Mukasey left off. Arce-Vences, as you'll recall, is the case from last month holding that simple possession of even a large quantity of a controlled substance is not an aggravated felony under Lopez v. Gonzales. The court essentially rejected the idea that the amount of drugs can be used as a proxy for an intent to distribute if the statute of conviction lacks such an element. Although Arce-Vences involved the "drug trafficking" portion of the "aggravated felony" definition, its holding looked to be equally applicable to various and sundry drug offense definitions scattered about the Sentencing Guidelines and the U.S. Code. But we no longer have to rely on Arce-Vences when it comes to the "drug trafficking" definition applicable to the 12- and 16-level enhancements in guideline §2L1.2, because now we have Lopez-Salas for that.

At issue here was Lopez's prior North Carolina conviction for conspiring to transport between 100 and 2000 pounds of marijuana under N.C. Gen. Stat. § 90-95(h). The statute, like similar statutes from other states, does not include an intent-to-distribute element; instead, it imposes progressively higher penalties based on the amount of the drug possessed or transported, effectively presuming an intent to distribute from the large drug quantity.

The Government argued that because the state statute presumes an intent to distribute, it's a §2L1.2 drug trafficking offense. The court disagreed, joining the majority side of a circuit split on this issue.

The Eleventh Circuit agrees with the Government. It has held that a court isn't limited to examining the elements of the prior offense when making the "drug trafficking" determination, so an effective presumption of an intent to distribute, like the one created by the North Carolina statute, makes the offense "drug trafficking." Otherwise, say the Elevens, the guideline would produce anomalous results.

Three other circuits---the Sixth, Ninth, and Tenth---have held otherwise. Like the Fifth Circuit, those courts use the Taylor categorical approach and refer only to the elements of a prior conviction when determining whether the offense constitutes §2L1.2 drug trafficking. And if there's no intent-to-distribute element, then the offense doesn't fit within the drug trafficking definition. The potentially anomalous results from this approach cannot "justify a departure from the ordinary standard of review." (Lopez-Salas found Judge McConnell's opinion for the Tenth Circuit in United States v. Herrera-Roldan "particularly persuasive" on this question.)

So the court agrees with the majority and holds that Lopez's conviction under § 90-95(h) isn't a §2L1.2 drug trafficking offense. But then the court goes out of its way to point out that the Guidelines are only advisory, and that Booker and Gall give a district court latitude to impose a non-Guidelines sentence when the circumstances warrant it. And hint-hint:

We have previously held that “[a] defendant’s criminal history is one of the factors that a court may consider in imposing a non-Guideline[s] sentence.” Smith, 440 F.3d at 709. Indeed, in United States v. Tzep-Mejia, 461 F.3d 522, 526-28 (5th Cir. 2006), we upheld an upward variance in a non-Guidelines sentence for a past conviction without regard to whether the prior offense “technically” qualified as a crime of violence under § 2L1.2(b)(1)(A)(ii).

True enough (although the sentence in Tzep-Mejia was arguably a downward variance). But don't forget that sauce for the goose is sauce for the gander. A sentencing court can also consider the relatively minor nature of a prior conviction that "technically" qualifies as drug trafficking---as in the case of an addict who sells to support his own habit and picks up a distribution conviction for selling a tiny quantity to an undercover cop---and vary downward on that basis.