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.

TX Delivery of Controlled Substance, Even If Based on Offer to Sell, Is "Serious Drug Offense" Under ACCA

United States v. Vickers, No. 07-10767 (5th Cir. Aug. 12, 2008) (Stewart, Owen, Southwick)

From the you-can't-tell-the-players-without-a-program files:

We know that the Texas offense of delivery of a controlled substance is neither a "drug trafficking" offense under guideline §2L1.2, nor a "controlled substance offense" under guideline §4B1.2(b), if the offense could have rested on the offer-to-sell alternative found in Texas's definition of "delivery." Which begs the obvious question: is it a "serious drug offense" for purposes of the Armed Career Criminal Act?

Yes, sayeth Vickers. Unlike the two guidelines definitions, which list specific acts that constitute a DTO or CSO, the ACCA's SDO definition extends to offenses "involving manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance . . . ." (emphasis added). "The word 'involving,'" the court says, "is an exceedingly broad term for a statute." And it's broad enough to encompass delivery by offer-to-sell:

The ACCA is intended to cover those individuals whose prior convictions indicate an “increased likelihood that the offender is the kind of person who might deliberately point the gun and pull the trigger.” Begay v. United States, 128 S. Ct. 1581, 1587 (2008). The expansiveness of the word “involving” supports that Congress was bringing into the statute’s reach those who intentionally enter the highly dangerous drug distribution world. Being in the drug marketplace as a seller – even if, hypothetically, the individual did not possess any drugs at that time – is the kind of self-identification as a potentially violent person that Congress was reaching by the ACCA.

Color me unpersuaded. Even if the court is right about Congress's understanding of "involving" in the SDO definition, that definition still doesn't reach all the conduct encompassed by a Texas delivery-by-offer-to-sell. As the court acknowledges, under Texas law "the accused need not have any drugs to sell or even intend ever to obtain the drugs he is purporting to sell." That being the case, a conviction for delivery-by-offer-to-sell doesn't necessarily establish that the offender has "intentionally enter[ed] the highly dangerous drug distribution world." And under the Shepard categorical approach, which the court employs here, that means that delivery-by-offer-to-sell is broader than the SDO definition and doesn't qualify as an ACCA predicate.

But let's assume the court is correct that someone convicted of delivery-by-offer-to-sell has intentionally entered The Game. Is that "the kind of self-identification as a potentially violent person that Congress was reaching by the ACCA," as the court says? I think the answer is: we don't know, and that ought to trigger the rule of lenity. As Justice Scalia pointed out in his Begay concurrence---on the question of whether DUI poses the same risk of injury that burglary does---it is impossible to know how serious that risk is without knowing how many instances of DUI there are in a year, and those statistics aren't available. Consequently, in Justice Scalia's view, because one "can do more than guess as to whether drunk driving poses a more serious risk than burglary[,]" the rule of lenity kicks in and DUI can't be considered a "violent felony" under the ACCA. Likewise, without knowing just how frequently drug transactions erupt into violence, or even just the incidence of violence in the drug trade as a whole, it's impossible to know how likely it is that someone who offers to sell drugs is the "the kind of person who might deliberately point the gun and pull the trigger."

An Offer to Sell Drugs Is Not a "Controlled Substance Offense" Under Guideline §4B1.2(b); Interesting Discussion of Plain Error

United States v. Price, No. 07-40040 (5th Cir. Feb. 1, 2008) (Higginbotham, Davis, Smith)

We know from United States v. Garza-Lopez that an offer to sell drugs is not a "drug trafficking offense" under guideline §2L1.2. And we know from United States v. Gonzales that a Texas conviction for delivery of a controlled substance isn't categorically a §2L1.2 DTO because the definition of "delivery" applicable to the Texas drug statutes includes an "offer to sell." Price holds that the same thing goes for the "controlled substance offense" definition found in guideline §4B1.2(b), because it's substantively identical to §2L1.2's DTO definition.

That much of Price is unremarkable, since it's simply a straightforward application of Gonzales. The more important part of the opinion concerns the third prong of plain error review. And for that, we need some background.

Price was convicted of being a felon in possession of a firearm. The district court applied a base offense level of 24 under guideline §2K2.1(a)(2), which applies "if the defendant committed any part of the instant offense subsequent to sustaining at least two felony convictions of either a crime of violence or a controlled substance offense." After all was said and done, the Guidelines slide rule spit out a range of 110 to 120 months. The district court sentenced Price at the bottom of the range.

Now as it turns out, one of Price's two priors was a Texas delivery of cocaine. His indictment for that offense alleged an offer-to-sell as one of the possible means of delivery, and the judgment didn't specify which means of delivery his guilty plea admitted. Price raised this on plain error review. Following Gonzales, the court of appeals held that the offense didn't constitute a CSO.

Absent the error, Price would have been looking at a Guidelines range of no more than 92 to 115 months. The court held that even though the 110-month sentence Price received was within that range, the error nevertheless affected Price's substantial rights, the third element of plain error. And on this point the court acknolwedged a "potential conflict" in the Fifth Circuit's pre- and post-Booker case law. Prior to Booker, the court held that there's no plain error if the district court could impose the same sentence on remand---an objective inquiry. After Booker, in United States v. Villegas, the court adopted a subjective approach, holding "that the question of substantial rights turns on 'whether the defendant can show a reasonable probability that, but for the district court’s misapplication of the Guidelines, [the defendant] would have received a lesser sentence.'"

The court here ultimately held that Price demonstrated “at least a reasonable probability that the district court would have imposed a lesser sentence if it had properly applied the Guidelines[,]” for two reasons: 1) although Villegas didn't involve overlapping ranges, the spread between the bottom end of the correct and erroneous ranges was greater in Price's case than it was in Villegas, and there was plain error in Villegas; and 2) the district court here imposed the low end of what it erroneously believed to be the correct range. The court added that "with more of an overlap between correct and erroneous sentencing ranges, we would face a closer question of 'substantial rights' and would have to address the potential conflict between the pre- and post-Booker objective verus subjective inquiries that we raised in Jones. We leave that for another day."

Possession of Even Large Amount of Controlled Substance Isn't §2L1.2 "Drug Trafficking" If Statute Has No Intent-to-Distribute Element

United States v. Lopez-Salas, No. 06-41637 (5th Cir. Jan. 3, 2008; revised Jan. 30, 2008) (per curiam) (King, Barksdale, Dennis)

Lopez-Salas picks up where Arce-Vences v. Mukasey left off. Arce-Vences, as you'll recall, is the case from last month holding that simple possession of even a large quantity of a controlled substance is not an aggravated felony under Lopez v. Gonzales. The court essentially rejected the idea that the amount of drugs can be used as a proxy for an intent to distribute if the statute of conviction lacks such an element. Although Arce-Vences involved the "drug trafficking" portion of the "aggravated felony" definition, its holding looked to be equally applicable to various and sundry drug offense definitions scattered about the Sentencing Guidelines and the U.S. Code. But we no longer have to rely on Arce-Vences when it comes to the "drug trafficking" definition applicable to the 12- and 16-level enhancements in guideline §2L1.2, because now we have Lopez-Salas for that.

At issue here was Lopez's prior North Carolina conviction for conspiring to transport between 100 and 2000 pounds of marijuana under N.C. Gen. Stat. § 90-95(h). The statute, like similar statutes from other states, does not include an intent-to-distribute element; instead, it imposes progressively higher penalties based on the amount of the drug possessed or transported, effectively presuming an intent to distribute from the large drug quantity.

The Government argued that because the state statute presumes an intent to distribute, it's a §2L1.2 drug trafficking offense. The court disagreed, joining the majority side of a circuit split on this issue.

The Eleventh Circuit agrees with the Government. It has held that a court isn't limited to examining the elements of the prior offense when making the "drug trafficking" determination, so an effective presumption of an intent to distribute, like the one created by the North Carolina statute, makes the offense "drug trafficking." Otherwise, say the Elevens, the guideline would produce anomalous results.

Three other circuits---the Sixth, Ninth, and Tenth---have held otherwise. Like the Fifth Circuit, those courts use the Taylor categorical approach and refer only to the elements of a prior conviction when determining whether the offense constitutes §2L1.2 drug trafficking. And if there's no intent-to-distribute element, then the offense doesn't fit within the drug trafficking definition. The potentially anomalous results from this approach cannot "justify a departure from the ordinary standard of review." (Lopez-Salas found Judge McConnell's opinion for the Tenth Circuit in United States v. Herrera-Roldan "particularly persuasive" on this question.)

So the court agrees with the majority and holds that Lopez's conviction under § 90-95(h) isn't a §2L1.2 drug trafficking offense. But then the court goes out of its way to point out that the Guidelines are only advisory, and that Booker and Gall give a district court latitude to impose a non-Guidelines sentence when the circumstances warrant it. And hint-hint:

We have previously held that “[a] defendant’s criminal history is one of the factors that a court may consider in imposing a non-Guideline[s] sentence.” Smith, 440 F.3d at 709. Indeed, in United States v. Tzep-Mejia, 461 F.3d 522, 526-28 (5th Cir. 2006), we upheld an upward variance in a non-Guidelines sentence for a past conviction without regard to whether the prior offense “technically” qualified as a crime of violence under § 2L1.2(b)(1)(A)(ii).

True enough (although the sentence in Tzep-Mejia was arguably a downward variance). But don't forget that sauce for the goose is sauce for the gander. A sentencing court can also consider the relatively minor nature of a prior conviction that "technically" qualifies as drug trafficking---as in the case of an addict who sells to support his own habit and picks up a distribution conviction for selling a tiny quantity to an undercover cop---and vary downward on that basis.

Panel Reverses Itself in Ford; Now Holds Possession with Intent to Offer to Sell is a Drug Trafficking/Controlled Substance Offense

United States v. Ford, No. 06-20142 (5th Cir. Dec. 11, 2007) (Davis, Prado; Dennis, dissenting)

As you'll recall, back in May the panel in this case held unanimously that the Texas offense of possession of a controlled substance with intent to deliver is not a "controlled substance offense" as defined in guideline §4B1.2. That's because 1) the Texas definition of "delivery" includes an offer to sell a controlled substance, 2) prior Fifth Circuit opinions have held that an offer to sell lies outside the virtually identical "drug trafficking offense" definition in guideline §2L1.2, and 3) if an offer to sell isn't a DTO/CSO, then it logically follows that possession with intent to offer to sell isn't a DTO/CSO, either.

Six-and-a-half months later, the panel has changed its mind. It now holds that the offer-to-sell precedent isn't controlling because "the conviction here was for possession with intent to deliver rather than just delivery or transportation." Apparently relying on colloquial understandings of "delivery" and "distribute," rather than the actual language of the Texas "delivery" definition, the court "agree[s] with the government that it is pure sophistry to distinguish between the conduct of one who possesses drugs with intent to deliver those drugs and one who possesses drugs with intent to distribute them."

The controlling case, according to the court, is United States v. Palacios-Quinonez, which held that a California statute prohibiting the purchase of a controlled substance for the purpose of selling it is equivalent to possession with intent to distribute and therefore a DTO. Palacios-Quinonez distinguished the offer-to-sell cases on the ground that it's possible to offer to sell drugs without possessing them, but that a purchase for sale requires the actual or constructive possession of drugs. Therefore,

[f]or purposes of qualifying as a controlled substance offense, Ford’s conduct is indistinguishable from Palacios’ conduct. Ford possessed drugs with intent to deliver or pass them on to another. Palacios purchased drugs (and thereby actually or constructively possessed them) and intended to sell them to another. The conduct in both instances is equivalent to the drug trafficking offense, possession of a controlled substance with intent to distribute.

Judge Dennis, who authored the original panel opinion, dissents. He covers a lot of ground, but here's the core of his disagreement (sans citations):

[T]he majority attempts to (mis)characterize Ford’s “intent to deliver” as an “intent to distribute.” The majority concludes quite summarily that “Ford possessed drugs with intent to deliver or pass them on to another.” (emphasis added). The majority obviously believes and desires to characterize Ford as intending to “pass” drugs onto another, which is “distribution” for federal sentencing purposes. However, no document informs this panel that Ford was convicted for intending to “pass” controlled substances. He was only convicted for an “intent to deliver controlled substances,” which includes an intent to “offer to sell controlled substances.” Gonzales clearly forbids us today to characterize the term “delivery” in this Texas statute as necessarily including the “passing” of controlled substances to another, i.e., actually or constructively transferring controlled substances to another. Gonzales logically requires us today to consider Ford’s conviction as possession with intent to offer to sell and not, as the majority desires, a conviction that implicates an intent to actually or constructively transfer controlled substances.

In essence, the majority opinion is asking us to disregard precedent concluding that “a disjunctive statute may be pleaded conjunctively and proven disjunctively.” The majority now recharacterizes Ford’s guilty plea as necessarily convicting him of possession with intent to transfer, rather than with intent to offer to sell, although the latter is the only intent or offense imputable to him under the Taylor categorical approach. Thus, the majority disregards Gonzales and an established line of precedent under which we are required to assume that the conviction was necessarily established under only the least culpable of the disjunctive possibilities, i.e., possession with intent to offer to sell.

Judge Dennis makes several other points, as well. He responds effectively to the majority's ill-advised adoption of the Government's "sophistry" rhetoric by counting noses and finding that a majority of Fifth Circuit judges have signed on to opinions employing Ford's original reasoning: "[B]y pejoratively calling the reasoning of our original panel opinion 'sophistry,' the new majority here is hurling the epithet of 'sophist' at no less than a majority of this court, including all members of this panel."

Judge Dennis also points out that the new-and-improved Ford will lead to anomolous results. Under Texas law, possession with intent to deliver is a lesser-included offense of delivery. Thus, under Ford redux "a Texas culprit who possesses drugs with intent to offer them for sale is exposed to USSG enhancement while a Texas criminal who is guilty of the greater and more serious crime of delivery of drugs is not."