21 U.S.C. § 843(b) Conviction Is a §2L1.2 DTO If the Underlying Offense Committed, Caused, or Facilitated Is a DTO

United States v. Pillado-Chaparro, No. 08-30192 (5th Cir. Sept. 17, 2008) (per curiam) (Davis, Garza, Prado)

Four circuits have held that use of a communications facility in committing or causing or facilitating a felony drug trafficking offense, in violation of 21 U.S.C. § 843(b), is a "drug trafficking offense" for purposes of the 12- and 16-level enhancements in guideline §2L1.2(b)(1)(A)(i) and (b)(1)(B). Pillardo-Chaparro brings the count to five.

The court relied primarily on the Eleventh Circuit's decision in United States v. Orihuela, which reasoned:

1. §2L1.2's DTO definition is substantively identical to guideline §4B1.2(b)'s "controlled substance offense" definition,
2. §4B1.2's commentary declares that an § 843(b) offense is a CSO if the "the underlying offense (the offense committed, caused, or facilitated) was a 'controlled substance offense'", and
3. facilitation of a CSO is the same thing as aiding and abetting a CSO.

Because the indictment charging Pillardo with the § 843(b) alleged that he used a telephone to facilitate a conspiracy to distribute marijuana and cocaine, and because that underlying offense is a DTO, Pillardo's § 843(b) conviction is likewise a DTO.