Georgia Possession With Intent to Distribute Is § 2L1.2 DTO Even Though Not an Aggravated Felony Per Moncrieffe; No Remuneration Required

United States v. Martinez-Lugo, No. 13-40924 (5th Cir. Mar. 27, 2015) (Davis, Dennis, Costa) (per curiam)

The Fifth Circuit giveth and then taketh away.  For 3 months, giving away drugs was not a § 2L1.2 drug trafficking offense (DTO) thanks to the now superseded United States v. Martinez-Lugo, 773 F.3d 678 (5th Cir. Dec. 11, 2014) (Davis, Dennis, Costa).  Last week, the panel sua sponte withdrew its prior opinion and substituted an opinion that finds a conviction for Georgia conviction for possession with intent to distribute (PWID) marijuana is a § 2L1.2 DTO even though the Supreme Court held it was not an aggravated felony in Moncrieffe v. Holder, 133 S. Ct. 1678 (2013).  Lack of remuneration does not prevent Georgia PWID from being a § 2L1.2 DTO. 

In the withdrawn opinion, the majority focused on the common sense definition of “drug trafficking offense.”  The Moncrieffe court reiterated the Supreme Court’s previous recognition that “the everyday understanding of ‘trafficking’ . . . ordinarily means some sort of commercial dealing.”  Since the Georgia PWID statute does not require remuneration, the Martinez-Lugo majority in the withdrawn opinion found that it was not categorically a DTO.

In the new opinion, the majority focuses on the elements of a federal drug trafficking offense and compares them, rather than the Moncrieffe definition of “trafficking,” to the Georgia PWID statute.  Moncrieffe recognized that the elements of Georgia PWID and PWID under the Controlled Substances Act (CSA) are the same.  The only reason Georgia PWID is not an aggravated felony is that the distribution of a small amount of marijuana for no remuneration is a misdemeanor under the CSA, and only CSA felonies would be an aggravated felony.  In contrast, § 2L1.2 does not require that an offense be a CSA felony in order to be a DTO. 

The new Martinez-Lugo majority opinion claims Martinez-Lugo never argued that the elements of Georgia PWID differ from the elements of the generic, contemporary PWID offense but instead argued that Moncrieffe controls.  The majority “decline[s] to extend Moncrieffe to the different scheme embodied in the Guidelines absent clear direction to do so. . . . Under a straightforward application of the categorical approach, the Georgia offense under which Martinez-Lugo was convicted has the same elements as the generic possession with intent to distribute offense.” 

Judge Dennis dissents.  He interprets Moncrieffe as making clear that the generic definition of a “trafficking” does not include sharing a small amount of marijuana for no remuneration.  The CSA recognizes this by treating such an offense as a misdemeanor simple possession.  Since the categorical approach requires a court to examine the least culpable act punishable under a statute, which would include sharing a small amount of marijuana for no remuneration, Georgia PWID is not a § 2L1.2 DTO.  Judge Dennis also criticizes the “ironic and illogical inconsistency” that, under the majority’s decision, Martinez-Lugo receives a 16-level enhancement for a DTO but would not be subject to the 8-level enhancement for an aggravated felony.

Note:  This is the second time in three years that a Fifth Circuit panel initially resolved a § 2L1.2 DTO issue in favor of the defendant and then withdrew the opinion and entered an opinion affirming the enhancement.  See United States v. Rodriguez-Escareno, 700 F.3d 751, 753 (5th Cir. 2012) (superseding prior opinion that held conspiracy to distribute meth was not a DTO).