Presumed Intent to Distribute due to Quantity of Drug Does Not Make Florida Trafficking in Meth a § 2L1.2 Drug Trafficking Offense

United States v. Sarabia-Martinez, No. 14-50064 (5th Cir. Feb. 20, 2015) (Reavley, Jones, Elrod)

How can an offense called trafficking in methamphetamine not be a drug trafficking offense?  Well, Florida Statute § 893.135(1)(f) includes mere possession as a form of “trafficking” provided the defendant possesses at least 14 grams of methamphetamine.  Under the U.S. Sentencing Guidelines, though, presumption of intent to distribute due to the possession of a certain quantity of the drugs does not create a drug trafficking offense.  United States v. Lopez-Salas, 513 F.3d 174, 179-80 (5th Cir. 2008).

So, Florida trafficking in methamphetamine is not categorically a drug trafficking offense.  No Shepard documents narrowed Sarabia-Martinez’s conviction to a form of trafficking other than mere possession, and the district court plainly erred by relying on facts contained in the Presentence Investigation Report to conclude that the conviction was for drug distribution.  The panel rejected the Government’s argument, based on non-Shepard documents, that the error did not work an injustice and that remand would be improper.  The panel reasoned the “facts asserted in the ‘arrest report’ now provided by the government were never confirmed by Sarabia-Martinez” and declined drawing “any conclusions from documents the district court would not be permitted to consider.”  The erroneous enhancement resulted in a notable sentencing disparity, and Sarabia-Martinez had no other significant convictions or prior reentry convictions.  The sentence was vacated and remanded for resentencing.

Updated § 2L1.2 Crime of Violence list, which includes some drug trafficking offenses, is available on fd.org.