Bare Offer to Sell Drugs Is Now Drug-Trafficking Offense Under Illegal Reentry Guideline; Still Not Plain Error to Apply Higher Guidelines In Effect at Time of Sentencing

United States v. Marban-Calderon, No. 09-40207 (5th Cir. Jan. 18, 2011) (Higginbotham, Smith, Elrod)

As you'll recall, the Fifth Circuit has in the past held that a Texas conviction for delivery of a controlled substance was not categorcially a "drug trafficking offense" under guideline §2L1.2, because the offense can be committed by a bare offer to sell drugs.  You'll also recall that the Sentencing Commission amended §2L1.2's "drug trafficking" definition in November 2008 to include offers to sell:

"Drug trafficking offense" means an offense under federal, state, or local law that prohibits the manufacture, import, export, distribution, or dispensing of, or offer to sell a controlled substance (or a counterfeit substance) or the possession of a controlled substance (or a counterfeit substance) with intent to manufacture, import, export, distribute, or dispense.

Marban-Calderon thus holds:

Following this change, a Texas conviction for delivery of a controlled substance—whether by active transfer, by constructive transfer, or by offer to sell—necessarily qualifies as a drug trafficking offense under the Sentencing Guidelines.

But wait, there's more: an ex post facto issue on which there's a circuit split, and an intriguing question raised by that 2008 amendment.

Marban, as near as I can tell, did not dispute that an offer to sell is now a DTO.  His argument was that that "the district court violated the Ex Post Facto Clause by applying the 2008 Guidelines to conduct occurring before those Guidelines went into effect."  But Marban did not raise that argument in the district court, so the court reviewed only for plain error:

Our court has not yet decided whether the Ex Post Facto Clause permits retroactive application of Sentencing Guidelines that recommend a greater sentence than the Guidelines in effect at the time of the offense. Our sister circuits which have considered this issue are divided. In light of this disagreement, we held in United States v. Castillo-Estevez that applying an amended version of the Sentencing Guidelines does not rise to the level of plain error.

Our decision in Castillo-Estevez directly controls this case. Accordingly, we follow the district court in reviewing Marban’s sentence under the 2008 edition of the Sentencing Guidelines.

Of course, there are those who say that Castillo-Estevez broke from prior panel precedent, and that the Fifth Circuit had already held that the Ex Post Facto Clause still applies to the Guidelines post-Booker.
 
One last thing not addressed in the opinion: is Texas possession with intent to deliver, which can be possession of a controlled substance with the intent to offer to sell it, a §2L1.2 DTO?  Prior to the 2008 Amendment, the Fifth Circuit had answered that question "yes" in the context of Chapter 4's very similar "controlled substance offense" definition, a holding subsequent panels applied to §2L1.2.  But did the amended DTO definition change that?

Consider that the DTO definition has two parallel clauses: the first clause is a list of specific acts that constitute drug trafficking, and the second clause reaches possession of a controlled substance with intent to do any of a list of specific acts. The lists are identical, with one exception: "offer to sell" is on the first list, but not the second. Given the parallel structure of the two clauses, and the facts that the lists of acts are exhaustive rather than inclusive, that the acts appear in the same order in the two lists, and that the only difference between the two lists of acts is the omission of "offer to sell" in the possession-with-intent clause, under the plain language of the definition it would seem that while an offer to sell is a drug trafficking offense, possession with intent to offer to sell is not.