Giving Away Drugs Is Not A § 2L1.2 Drug Trafficking Offense (Opinion Withdrawn)

The Fifth Circuit sua sponte withdrew the opinion described below and replaced it with

United States v. Martinez-Lugo, No. 13-40924 (5th Cir. Mar. 27, 2015) (Davis, Dennis, Costa) (per curiam).  The new opinion holds affirms the district court and applies the 16-level enhancement after finding that Moncrieffe does not control.  See the blog post from April 3 on the new opinion for more information.

US v. Martinez-Lugo, No. 13-40924 (5th Cir. Dec. 11, 2014) (Davis, Dennis, Costa) (withdrawn on March 27, 2015)

At long last, the Fifth Circuit finally had to address whether a § 2L1.2 drug trafficking offense (DTO) includes giving away drugs without remuneration.  After rejecting similar arguments raised by defendants on plain error review, the panel resolved this question in Martinez-Lugo’s favor, albeit by a split panel. 

Martinez-Lugo’s conviction was under Georgia Code Annotated section 16-13-30(j)(1), the same statute at issue in Moncrieffe v. Holder, 133 S. Ct. 1678 (2013).  In Moncrieffe, the Supreme Court held that the conviction was not an aggravated felony—illicit trafficking in a controlled substance, defined in part as a felony under the Controlled Substance Act (CSA)—because the CSA treats distribution of a small amount of marijuana for no remuneration as a misdemeanor.  

Section 2L1.2 does not define a DTO other than in the Application Notes, and the Application Note definition does not refer to the CSA.  So, the holding of Moncrieffe does not control.  Nevertheless, the majority relies on Moncrieffe’s language that “the everyday understanding of ‘trafficking[]’ ordinarily . . . means some sort of commercial dealing.”  Since the Application Note definition of DTO, which includes “possession . . . with intent to distribute” would conflict with the common understanding of the term “trafficking” if distribution did not require remuneration, the panel only applies the language of the § 2L1.2 guideline and finds that Martinez-Lugo’s conviction for an offense that could include giving away marijuana cannot support the 16-level enhancement.

Judge Costa dissents, urging the “straightforward result” that flows from the § 2L1.2 Application Note definition of a DTO.  Since Martinez-Lugo was convicted of possession with intent to distribute, Judge Costa maintains the 16-level enhancement applies.