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  For 3 months, giving away drugs was not a § 2L1.2 drug trafficking offense (DTO) thanks to the now superseded United States v. Martinez-Lugo, 773 F.3d 678 (5th Cir. Dec. 11, 2014) (Davis, Dennis, Costa).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In the withdrawn opinion, the majority focused on the common sense definition of “drug trafficking offense.”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  Since the Georgia PWID statute does not require remuneration, the Martinez-Lugo majority in the withdrawn opinion found that it was not categorically a DTO.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).

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.

Error, if Any, in Relying on Non-Shepard Document to Assess 12-Level Enhancement Did Not Affect Fairness, Integrity, or Public Reputation of Judicial Proceedings

United States v. Duque-Hernandez, No. 11-40642 (Smith, Prado, Higginson)

Duque-Hernandez pled guilty to illegal reentry and was sentenced to 51 months of imprisonment, which was the low end of the guidelines range after the court applied a 12-level enhancement. The court determined that his conviction under Utah Criminal Code § 58-37-8(1)(a)(ii) was a drug trafficking offense (DTO) by relying on a probable cause statement attached to the information. Duque-Hernandez did not object. On appeal, Duque-Hernandez argued that the statute of conviction was broader than a DTO and that the court erred in relying on a non-Shepard document to apply the enhancement.

The panel avoided the issues raised, however, finding that any error did "not seriously affect the fairness, integrity, or public reputation of judicial proceedings, [and] we decline to exercise our discretion to correct it." In sum: it’s not worth re-sentencing this defendant because we think he really did commit a drug trafficking offense (even if the Shepard documents don’t support that conclusion), he did not object even though he previously appealed on this same issue for a prior illegal reentry charge (and won!), and his sentence "has strong foundation" because he "has persistently disregarded the immigration [and drug] laws of the United States."

The one issue that the panel decided: it could rely on the probable cause statement, even if it was not a Shepard document, to determine whether the application of the DTO adjustment seriously affected the fairness, integrity, or public reputation of the proceedings. Since that statement indicates that Duque-Hernandez offered to sell cocaine, the panel allowed it to influence its determination of whether or not to vacate and remand for sentencing.

The lesson: preserve, preserve, preserve. Also, look up prior cases for repeat illegal reentry clients to find out how the courts have treated their priors. You might find arguments - or even decisions - that will help them out on their subsequent cases.

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.
Read more »

Why the Departure/Variance Distinction Matters, Part Two

United States v. Gutierrez-Hernandez, No. 08-20620 (5th Cir. Aug. 28, 2009) (King, Higginbotham, Clement)

Several months ago I opined that the distinction the Fifth Circuit draws between Guidelines and non-Guidelines sentences "may be little more than a formal distinction, given the Fives' deferential approach to substantive reasonable review." Turns out that I couldn't have been more wrong. Exhibit 1: the Sixth Circuit's recent decision holding that, even post-Booker, a district court's discretionary refusal to depart is unreviewable on appeal, which is in accord with at least one unpublished Fifth Circuit decision. Exhibit 2: Gutierrez-Hernandez, in which the court reverses a sentence involving an upward departure, because the district court erroneously applied two of the Guidelines departure provisions.

What happened? Gutierrez pleaded guilty to illegal reentry.

The district court adopted the presentence report which preliminarily calculated a guideline sentence range of 10 to 16 months based on a total offense level of 10 and a criminal history category of III. The PSR then recommended two guideline departures. First, it pointed to a 2008 state handgun conviction for which Gutierrez was sentenced to 20 days imprisonment. The report suggested a departure under § 4A1.3, Inadequacy of Criminal History Category, because if the crime had been federally prosecuted, Gutierrez would have faced a greater sentence. Second, the PSR recommended a departure under § 5K2.0, Other Grounds for Departure, based on a 2003 state drug conviction, which, based on a police department offense report, the probation officer considered more serious than the guidelines accounted for. Gutierrez filed written objections to the upward departures in the PSR. In its statement of reasons, the district court repeated the language from the PSR and checked the boxes indicating that both departure provisions applied, thereby increasing Gutierrez’s offense level from 10 to 17. This resulted in a guidelines range of 30 to 37 months. Gutierrez was sentenced to 30 months.

On appeal, Gutierrez argued that the district court committed procedural error by misapplying the departure Guidelines. The court agreed. As for the criminal history departure, the court said that "[t]he prior state sentence may well under-represent the seriousness of Gutierrez’s criminal history[,]" but declined to "reach that question because the district court erred in determining the manner in which an adequate criminal history score is accounted for." The Guidelines require that a criminal history departure be made by adjusting the criminal history category, not—as the district court did—by adjusting the offense level. "A departure based on the inadequacy of criminal history is not made by adjusting the factor that accounts for the offense level of the instant crime."

A similar flaw underlay the district court's application of §5K2.0. The district court justified the departure on the ground of Gutierrez's prior Texas conviction for delivery of a controlled substance. That conviction did not trigger the "drug trafficking" enhancement under §2L1.2 because the Shepard-approved documents did not exclude the possibility that the conviction rested on an offer-to-sell, which at the time of sentencing in this case did not qualify as a drug-trafficking offense. Nevertheless, "the district court looked to the police report—a document it could not consider under the [Taylor-Shepard approach]—to determine that Gutierrez’s conduct involved an actual sale of cocaine, activity within the federal definition of a drug trafficking offense, and not merely an offer to sell, which is outside the definition. It determined that Gutierrez’s conduct would have triggered the enhancement if the indictment had described Gutierrez’s conduct in detail. It therefore applied the § 5K2.0 departure." That was error, said the court of appeals:

A district court cannot escape Taylor and Shepard by looking to a police report—which it could not earlier use to determine whether a prior conviction was a drug trafficking offense—to later justify a departure on the basis that the enhancement should have applied. Even more fundamentally, the 2003 conviction cannot support this departure because prior offenses serve as the basis for § 4A1.3 departures, which specifically focus on criminal history, and not § 5K2.0 departures, which consider circumstances of the instant offense. The provision identifies inter alia as relevant circumstances death, physical injury, psychological injury, abduction, and property damage, all pertinent to the offense at hand.

(emphasis added). Thus, the district court committed procedural error within the meaning of Gall, because "it gave no valid basis for the § 5K2.0 departure and misapplied the § 4A1.3 departure." More importantly, this error was fatal to the sentence:

The government urges that this Court can affirm the sentence as reasonable, under the second step of Gall, despite the procedural error in calculating the guideline sentencing range. If this case were in the Seventh or Ninth Circuit that argument might have traction. Those circuits, after United States v. Booker directed that the Guidelines were advisory, found that the guideline departures provisions had been “rendered obsolete” and “replaced by the requirement that judges impose a ‘reasonable’ sentence.”

This Circuit, however, has found otherwise. In a case vacating and remanding because the district court misapplied a guideline enhancement, we stated “nothing suggests that Booker injected a reasonableness standard into the question whether the district court properly interpreted and applied the Guidelines or that an appellate court no longer reviews a district court's interpretation and application of the Guidelines de novo.” Booker left in force 18 U.S.C. § 3742(f) which provides: “If the court of appeals determines that . . . the sentence was imposed in violation of law or imposed as a result of an incorrect application of the sentencing guidelines, the court shall remand the case for further sentencing proceedings with such instructions as the court considers appropriate.” A district court must correctly apply the sentencing guidelines.

Of course, a court may impose a non-guidelines sentence based on the reasonableness factors in 18 U.S.C. § 3553(a). But one of those factors is the sentence established by the guidelines. The properly-calculated guideline sentencing range is the point from which the court may vary, a necessary factor in determining reasonableness. The Eleventh Circuit labels this the “consultation requirement,” and the Third Circuit recognizes that error in calculating the guideline range “may presage the sentence ultimately set.” Without the correct guideline range, the court varies from the wrong point.

Because the district court erred in the application of the departure provisions we VACATE Gutierrez’s sentence and REMAND for resentencing.

No doubt a key factor in this winning appeal is that Gutierrez submitted written objections to the PSR's call for an upward departure, thus avoiding plain error review. And you should always have the opportunity to do that. Remember that Fed. R. Crim. P. 32(h) still requires advance notice that the court is contemplating a departure (although not for variances).

Suspended Sentence Not a "Sentence Imposed" for §2L1.2 Purposes, But Troubling Plain Error Analysis

United States v. Rodriguez-Parra, No. 08-40708 (5th Cir. Aug. 26, 2009) (Higginbotham, Smith, Southwick)

There's good and bad in this opinion. The good is that a suspended sentence isn't a "sentence imposed" for purposes of the 12- and 16-level drug-trafficking enhancements in guideline §2L1.2. The bad is that the panel continues a recent trend of ever-stricter plain error review, and in this case employs an approach to "plainness" that appears contrary to Supreme Court and Fifth Circuit case law.

So what happened? In 1994, Rodriguez was convicted of delivery of marijuana in Texas state court. He was sentenced to five years' imprisonment, which was suspended in favor of five years' probation, and served no part of his sentence in jail. When Rodriguez later illegally reentered the United States, the Texas conviction formed the basis for a 12-level enhancement under guideline §2L1.2(b)(1)(B), as "a conviction for a felony drug-trafficking offense for which the sentence imposed was 13 months or less[.]" The district court sentenced Rodriguez to 46 months' imprisonment, which was the bottom of the advisory Guidelines range.

On appeal, Rodriguez argued that the prior Texas drug conviction "cannot be used to enhance the [illegal reentry] sentence, because the [drug] sentence was entirely suspended." Because Rodriguez did not raise this argument in the district court, the court of appeals reviewed for plain error.

First, the good news. The court found error:

We must first decide whether there was error. The court enhanced under § 2L1.2(b)(1)(B), which increases a sentence by twelve levels “[i]f the defendant previously was deported, or unlawfully remained in the United States, after . . . a conviction for a felony drug trafficking offense for which the sentence imposed was 13 months or less.” Because the sentence was entirely suspended in favor of probation, we must determine whether it is a “sentence imposed” for purposes of § 2L1.2.

Section 2L1.2’s application notes answer that question. “‘Sentence imposed’ has the meaning given the term ‘sentence of imprisonment’ in Application Note 2 and subsection (b) of § 4A1.2.” U.S.S.G. § 2L1.2 Application Note 1(B)(vii). Section § 4A1.2 states,

"(1) The term ‘sentence of imprisonment’ means a sentence of incarceration and refers to the maximum sentence imposed.

"(2) If a part of a sentence of imprisonment was suspended, ‘sentence of imprisonment’ refers only to the portion that was not suspended."

Under subsection (2), therefore, the suspended portion of a sentence is not part of a “sentence of imprisonment.” Thus, if all of Rodriguez-Parra’s sentence was suspended, there is no remaining portion of the sentence that could refer to “sentence of imprisonment.” Application note two confirms this: “To qualify as a sentence of imprisonment, the defendant must have actually served a period of imprisonment on such sentence.” U.S.S.G. § 4A1.2 Application Note 2 (emphasis added).

There is caselaw that supports this conclusion. In United States v. Brown, 54 F.3d 234, 240 (5th Cir. 1995), we examined what constituted a “sentence of imprisonment” under § 4A1.2. That term “require[s] that . . . some time actually be served on the sentence.” Id. The only other court of appeals to examine this issue after the 2003 guideline amendments reached the same conclusion. Because all of Rodriguez-Parra’s sentence was suspended, his prior sentence did not meet the requirements for “sentence imposed” under the guidelines, so there was error under the first prong of the plain-error rubric.

As you can see, the same reasoning would apply to a sentence of straight probation, although probably not if any jail time was imposed as a condition of probation.

Now for the bad news: the court found that the error was not plain, and appears to have departed from controlling Supreme Court and Fifth Circuit precedent in reaching that conclusion. The court said, "There is no plain error if the legal landscape at the time showed the issue was disputed, even if, as here, the district court turns out to have been wrong. United States v. Ellis, 564 F.3d 370, 377 (5th Cir. 2009)." (emphasis added).

There are two problems with that statement. First, it's contrary to Supreme Court precedent. In Johnson v. United States, the Court held that, "where the law at the time of trial was settled and clearly contrary to the law at the time of appeal[,] it is enough that an error be 'plain' at the time of appellate consideration." 520 U.S. 461, 468 (1997) (emphasis added). And, consistent with Johnson, the Fifth Circuit has held that "[t]he plain or obvious nature of the error is determined by the law as it exists at the time of appellate review, rather than the time of the district court's ruling." United States v. Davis, 487 F.3d 282, 284 (5th Cir. 2007). Rodriguez-Parra does not discuss or attempt to distinguish these cases, or others that have followed Johnson. Instead, it just cites Ellis, which brings us to the second problem.

Ellis does not say that plainness is assessed by reference to the state of the law at the time of sentencing. In fact, the court in Ellis never even decided whether there was error in the first place, because it concluded that the question at issue was so close that no error could be plain: "even now after full briefing and oral argument the error is not plain or obvious, indeed it is most uncertain whether there was any error at all." Here, on the other hand, the court found easily found error.

Rodriguez-Parra goes on to treat as controlling a Fifth Circuit case that found no plain error on the same issue presented here: United States v. Garcia-Rodriguez, 415 F.3d 452 (5th Cir. 2005).

In Garcia-Rodriguez, the defendant had been convicted in California on a drug offense and sentenced to three years’ probation. Id. The district court used the earlier conviction to enhance, despite the fact that the defendant had not been imprisoned as a result of the earlier conviction. Id. Focusing on the same “sentence imposed” language from § 2L1.2 that we are currently reviewing, we held that the enhancement was not plain error. Id. at 456.

Garcia-Rodriguez relied on the fact that, "at the time of . . . sentencing[,] . . . [t]wo courts of appeals had interpreted the relevant provision in the same manner as the district court, and this court's law was unsettled." As Rodriguez-Parra describes it, "the lack of Fifth Circuit controlling authority on the issue meant that there was not plain error. [Garcia-Rodriguez, 415 F.3d] at 456. The presence of Garcia-Rodriguez as binding precedent means, therefore, that the resolution of Rodriguez-Parra’s sentencing issue is less than obvious." Rodriguez-Parra goes on to say that its finding of error

is reached . . . only by a careful parsing of all the relevant authorities, including the sentencing guidelines and applicable decisions. “[T]o satisfy the second prong of plain error inquiry, ‘the legal error must be clear or obvious, rather than subject to reasonable [dispute].’” Ellis, 564 F.3d at 377-78 (quoting Puckett v. United States, 129 S. Ct. 1423, 1429 (2009)). Here the result is reached only by traversing a somewhat tortuous path.

But that's an odd description of the court's analysis of the issue, which is reproduced in full up above. The court only needed three relatively brief paragraphs of analysis to conclude that there was error. There was no indication here, as in Ellis, that the legal error was subject to reasonable dispute; indeed, the court apparently saw it as an easy question with a straightforward answer. And it's hard to say that that a simple cross-reference to another guideline amounts to a "somewhat tortuous path" (it's nothing compared to §2L1.2(b)(1)(C)'s incorporation of Title 8's "aggravated felony" definition, for example). Moreover, to the extent that the court is suggesting that error cannot, by definition, be "plain" whenever there is a lack of controlling case law on the question, that seems wrong, too. Especially if the relevant guideline provisions are clear, as they seem to be here.

Of course, this decision isn't all that surprising in light of what seems to be a trend towards a more stringent plain error review. There's that cite to Puckett, for example. There's also this:

That [tortuous] path . . . would have been more straight and level had Rodriguez-Parra made his objection in the district court, thus allowing each side to present its arguments on the question now at hand. This is the very point of the plain-error standard—it “serves powerful institutional interests, including securing the role of the United States District Court as the court of first instance.” [Ellis] at 378.

These concerns would carry more force if the question at issue were a closer one, but—again—that evidently wasn't the case here. They also sound more relevant to the third and fourth prongs of plain error review, not the second.

Given Rodriguez-Parra's apparent departure from established plain-error principles, this case would seem to be a good candidate for panel or en banc rehearing. We'll see what happens.

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.

Drug-Related Act Done With Knowledge That Drugs Are Intended for Sale Is §2L1.2 "Drug Trafficking Offense"

United States v. Fuentes-Oyervides, No. 07-41007 (5th Cir. Aug. 13, 2008) (per curiam) (Higginbotham, Stewart, Southwick)

Consider Ohio Rev. Code Ann. § 2925.03(A)(2), which "provides that no person shall knowingly '[p]repare for shipment, ship, transport, deliver, prepare for distribution, or distribute a controlled substance, when the offender knows or has reasonable cause to believe that the controlled substance is intended for sale or resale by the offender or another person.'" Is it a "drug trafficking offense" for purposes of the 12- and 16-level enhancements under guideline §2L1.2?

Fuentes argued that it's not, because some of the acts prohibited by the statute (preparing drugs for shipment, and shipping and transporting drugs) aren't listed in §2L1.2's DTO definition. He also argued "that a state conviction would not meet the alternative possession-with-intent clause of" the DTO definition because of different mens rea requirements: "the state statute only requires 1) knowledge or negligence, 2) as to another’s intent[,]" whereas §2L1.2 "requires that the offender actually intend to manufacture or distribute."

The court disagreed. It sided with a Tenth Circuit opinion holding that the Ohio statute need not be evaluated under the DTO definition's possession-with-intent prong because "an individual who prepares for shipment, ships, transports, delivers, prepares for distribution, or distributes a controlled substance while he knows or should know that the substance is intended for sale, commits an act of distribution under the Guidelines." In so holding, the court distinguished a couple of earlier Fifth Circuit decisions involving other state statutes:

• United States v. Garza-Lopez. Held that California "transportation, sale, etc." isn't categorically a DTO because it includes transportation of drugs for personal use. Distinguishable because "the Ohio statute here does not criminalize mere personal use possession; it requires a level of understanding that the drugs are for sale or resale."
• United States v. Lopez-Salas. Held that "a state’s presumption of intent to distribute – based upon the statute’s requirement that a large amount of drugs be transported – was not sufficient evidence of criminal intent to distribute for purposes of the Guidelines’ 'drug trafficking offense' adjustment." Distinguishable because the Ohio "statute at issue here explicitly includes a mens rea requirement concerning distribution."

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."

More Guidelines Amendments On the Horizon

Yesterday, in addition to promulgating some Guidelines amendments effective immediately, the Sentencing Commission submitted a new slate of amendments to Congress (official version, and redline). This group of amendments will take effect on November 1, 2008, absent Congressional action. Most of these amendments address matters that don't come up all that often (false liens, official corruption, animal fighting, and some technical issues). But there are a couple of amendments that you'll want to take a close look at.

First, the Commission has finally acknowledged the Booker line of cases in the Guidelines introduction found at the beginning of Chapter One, and put quite an interesting spin on them. According to the Commission, those cases emphasize the "continuing importance of the guidelines in the sentencing determination." There's also a paragraph that all but invites Congress to "exercise its authority through specific directives to the Commission with respect to the guidelines," noting that line in Kimbrough about how Congress knows how to do so if it wants to. (Even though several paragraphs earlier there's a paean to Mistretta.)

Second, there's some good and bad changes to guideline §2L1.2. The amendment effectively overrules the Sarmiento-Funes line of cases by defining "forcible sex offense" in the 16-level COV definition to include offenses "where consent to the conduct is not given or is not legally valid, such as where consent to the conduct is involuntary, incompetent, or coerced." The synopsis of the amendment specifically mentions that this change "would result in an outcome that is contrary to cases" such as Gomez-Gomez, Luciano-Rodriguez, and Sarmiento-Funes. (Making one wonder whether the Fives will go forward with en banc review in Gomez-Gomez.)

The amendment also effectively overrules United States v. Gonzales by adding an "offer to sell" a controlled substance as one of the acts constituting a DTO for purposes of the 12- and 16-level enhancements.

Finally, the amendment adds an application note suggesting that "a departure may be warranted" in "cases in which the applicable offense level substantially overstates or understates the seriousness of a prior conviction[,]" and gives a couple of examples. Such as when a defendant isn't hit with a 12- or 16-level DTO enhancement for a drug offense involving a quantity inconsistent with personal use (effectively codifying the dicta in Lopez-Salas, which held that possession of even a large quantity of a controlled substance isn't a DTO if the offense lacks an intent-to-distribute element, but also suggested that an upward departure might be warranted in that instance). On the other hand (and here's the good part I mentioned earlier), the note also says that "[i]n a case in which subsection (b)(1)(A) [the 16-level bump] applies, and the prior conviction does not meet the definition of aggravated felony at 8 U.S.C. § 1101(a)(43), a downward departure may be warranted." Such as a burglary-of-a-dwelling conviction for which the guy got a sentence of less than one year.

Shepard Permits Use of Texas Judicial Confession When Employing Modified Categorical Approach

United States v. Garcia-Arellano, No. 06-11276 (5th Cir. Mar. 25, 2008) (Wiener, Garza, Benavides)

You can add another item to the list of documents a court can use when employing the modified Taylor/Shepard categorical approach: a judical confession.

In this illegal reentry case, Garcia had a prior Texas conviction for delivery of a controlled substance. As we all know, that offense isn't categorically a "drug trafficking offense" for purposes of the guideline §2L1.2 enhancements because it includes some conduct---an offer to sell a controlled substance---that lies outside the DTO definition. So the question was whether the available documents from Garcia's state court guilty plea established that he was convicted of committing the offense in a way that would constitute a DTO.

Here, there were three documents available from the state court proceedings: the indictment, the judgment, and a judicial confession. The indictment alleged all three alternative methods of delivery conjunctively (actual transfer, constructive transfer, and offer to sell), and the judgment simply said that Garcia was convicted of delivery. Because Texas law allows conjunctive pleading and disjunctive proof, the indictment and judgment together did not exclude the possibility that the conviction could have rested on an offer to sell (just like in this case).

But what about the judicial confession? The court looks to Shepard, which sanctioned reliance on “the terms of the charging document, the terms of a plea agreement or transcript of colloquy between judge and defendant in which the factual basis for the plea was confirmed by the defendant, or to some other comparable judicial record of this information.” (emphasis added). Looking to state law for the effect of a judicial confession in Texas, as it must, the court goes on to hold that

a written judicial confession . . . constitutes a “comparable judicial record” under Shepard, and . . . it may be considered in determining whether a defendant’s prior conviction constitutes a drug trafficking offense under the guidelines. A Texas judicial confession is an admission made in the course of judicial proceedings by a party, “such as a confession made to an examining court before the trial.” Under Texas law, a judicial confession which stipulates to the factual content in an indictment provides a strong enough evidentiary basis to support a judgment of conviction on the charge without the need for any corroborating evidence. Also, Texas courts have recognized written judicial confessions as providing necessary proof of prior convictions for state sentence enhancement purposes. Accordingly, we regard a written judicial confession as the type of reliable and accurate judicial record the Shepard court indicated that a federal court may rely upon in an effort to determine the nature of the Texas offense to which Garcia previously pleaded guilty.

(cites asported).

That sounds right, but then things get a little odd when the court looks at Garcia's judicial confession, which admitted "that he did 'knowingly and intentionally deliver, to-wit, actually transfer, constructively transfer and offer to sell a controlled substance[,]' . . . [and]that he 'committed the offense with which [he] stand[s] charged exactly as alleged in the indictment in this case.'" The court holds that this confession established that Garcia committed all three forms of delivery: actual transfer, constructive transfer, and an offer to sell. Because two of those fit within the DTO definition, the enhancement applied.

Is the court right about that? It's easy to see how someone could offer to sell a controlled substance and then constructively transfer it, or offer to sell and then actually transfer. But actual and constructive transfer seem mutually exclusive, so does Texas law allow a conviction for both actual and constructive transfer where both acts are alleged in a single count? And if not, doesn't that create an ambiguity as to the exact type of delivery that Garcia was convicted of? I invite anyone familiar with Texas law on this point to chime in with a comment.

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.

Simple Possession of Even Large Quantitites of Drugs Is Not an Aggravated Felony (or a Drug Trafficking or Controlled Substance Offense)

Arce-Vences v. Mukasey, No. 06-60033 (5th Cir. Dec. 21, 2007) (Jolly, Higginbotham, Prado)

First, some background for those of you who aren't familiar with the Texas controlled substance scheme: Texas has no statute that include the elements of possession of marihuana with the intent to distribute it. It does for other controlled substances, but not for marihuana. Instead, there's a statute prohibiting delivery of marihuana, and a separate one criminalizing simple possession of marihuana, with penalties increasing in tandem with the amount of marihuana delivered or possessed.

Arce had a prior Texas conviction for possession of between 50 and 2000 pounds of marihuana. The question here is whether that's an "aggravated felony" under our old friend 8 U.S.C. § 1101(a)(43).

The answer: no. The court observed that under the Supreme Court's decision in Lopez v. Gonzales, "to constitute an aggravated felony . . . a prior state offense must either involve some sort of commercial dealing or be punishable as a federal felony under the Controlled Substances Act." Arce's prior conviction for simple possession, even of 50 to 2000 pounds of marihuana, doesn't pass either test. Simple possession doesn't involve commerical dealing, and "[e]ven though possession of a large amount of drugs may support a conviction for the federal felony of possession with intent to distribute, simple possession is only a misdemeanor under federal law." And although the opinion doesn't mention it, that's exactly what the Supreme Court suggested in Lopez (see 127 S. Ct. 625 nn.4, 10 & accompanying text).

But don't make the mistake of thinking that Arce-Vences is limited to the § 1101(a)(43) aggravated felony definition. Its holding---that simple possession of a large quantity of a drug is still just simple possession---should also apply to other drug offense definitions that exclude simple possession: §2L1.2 ("drug trafficking offense"), §4B1.2 ("controlled substance offense"), and 18 U.S.C. §924(c)(2) ("drug trafficking crime"). Arce-Vences should also put to rest any lingering concerns about the reasoning in the since-withdrawn panel opinion in United States v. Gutierrez-Bautista, which held that a state drug statute encompassing simple possession of more than 28 grams of methamphetamine, and incongruously captioned "trafficking," was categorically a §2L1.2 DTO because the statute essentially treated drug quantity as a proxy for an intent to distribute. The replacement opinion in Gutierrez-Bautista relied on entirely different reasoning to support the enhancement in that case, so Arce-Vences is the controlling authority on this issue.

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."

Panel Withdraws Opinion Holding that GA Meth "Trafficking" is a 2L1.2 DTO, But Holds That State Guilty Plea Admitted Conduct That Is a DTO

United States v. Gutierrez-Bautista, No. 06-40486 (5th Cir. Oct. 31, 2007) (Smith, Weiner, Owen)

The court first decided this case back in July. Gutierrez, who pled guilty to illegal reentry, had a prior Georgia conviction for "trafficking" in methamphetamine. Although the state statute is captioned "trafficking," it includes simple possession, as long as the amount of meth exceeds 28 grams. The first time around, the court held that the state statute was categorically a "drug trafficking offense" under guideline §2L1.2, reasoning that the statute infers an intent to distribute from the quantity of meth possessed. For reasons explained here, that decision was incorrect, and its reasoning conflicted with several unpublished decisions interpreting a similar statutory scheme from another state. The panel has now withdrawn its original opinion, albeit without explaining why, and substituted a new one in its stead that affirms the sentence based on different reasoning.

Gutierrez had pled guilty to an indictment that alleged that he both sold and possessed more than 28 grams of meth. Under the recent decision in United States v. Morales-Martinez, the court must look to state law to determine the effect of the guilty plea. Georgia law allows conjunctive pleading and disjunctive proof, so because the indictment alleged that Gutierrez sold and possessed meth, the state could have proven the offense by showing that he either sold or possessed meth. But according to the court, "Georgia law establishes that a guilty plea admits all averments of fact in the indictment or accusation." (emphasis added). Thus, "[u]nder Georgia law, [Gutierrez's] guilty plea admits that he both sold and possessed the drug." And since selling drugs is a DTO, the enhancement applied.

The court also rejected Gutierrez's Apprendi challenge to the § 1326(b) enhancement, stating (incorrectly) that the Supreme Court reaffirmed Almendarez-Torres in James v. United States, and (correctly) that "[s]ince James, this court has said that arguments like Gutierrez-Bautista’s 'will be viewed with skepticism, much like arguments challenging the constitutionality of the federal income tax' and that 'this issue is "fully foreclosed from further debate."'" That's Pineda-Arrellano, of course, and the cert petition in that case is still pending. The Court requested a response from the Solicitor General, and that's currently due by November 14th.

Unpublished Opinion Holds TX Delivery of Controlled Substance Is Not Categorically An Aggravated Felony

United States v. Fuentes, No. 06-20325 (5th Cir. Aug. 8, 2007) (unpublished) (per curiam) (Higginbotham, Garza, Benavides)

Under United States v. Gonzales, the Texas offense of delivery of a controlled substance is not categorically a "drug trafficking offense" for purposes of the 12- or 16-level enhancements in guideline §2L1.2(b)(1)(A)(i) and (b)(1)(B). But what about the 8-level "aggravated felony" enhancement under (b)(1)(C)? The aggravated felony definition is broader than the §2L1.2 drug-trafficking definition.

Fuentes holds that Texas delivery is not categorically aggravated felony. Unfortunately, the court doesn't lay out its reasoning as clearly as it could (it is an unpublished case, after all). So to understand the basis for the holding you have to look up a Ninth Circuit case cited in footnote 2: United States v. Rivera-Sanchez, 247 F.3d 905, 908-09 (9th Cir. 2001) (en banc). Once you do that, the reasoning emerges:

1. An offense is an aggravated felony if it would be punishable as a felony under the federal Controlled Substances Act.
2. As the Ninth Circuit held in Rivera-Sanchez, a mere offer to sell drugs is not punishable under the CSA and is therefore not an aggravated felony.
3. The Texas delivery definition includes offers to sell, so it's not categorically an aggravated felony.

The Government hadn't argued otherwise. Instead, it made a convoluted argument that Fuentes was convicted of what would constitute an offer to sell drug paraphernalia (an offense under 21 U.S.C. § 863(a)(1)), because the charging papers alleged that he offered to sell adulterants and dilutants, which count as drug paraphernalia under the CSA. The court rejected that argument on the ground that the adulterant-and-dilutant allegation

does not mean that there necessarily were adulterants and dilutants; rather, it only means that if there were adulterants and dilutants, they were counted toward the total aggregate weight of the cocaine. Therefore, Fuentes’s conviction and the criminal information do not necessitate a finding that Fuentes offered to sell drug paraphernalia, and the district court erred in applying a sentencing enhancement for a prior conviction of an “aggravated felony” under U.S.S.G. § 2L1.2(b)(1)(C).

Must Look to Law of Convicting Jurisdiction to Determine Whether Guilty Plea Admits All or Only Some of Conjunctive Allegations In Charging Instrument

United States v. Morales-Martinez, No. 06-40467 (5th Cir. Aug. 8, 2007) (Higginbotham, Garza, Benavides)

An offense can be committed in multiple ways, some of which would qualify for an enhancement (such as a "drug trafficking" or "crime of violence" enhancement), and some of which would not. Charging instrument alleges qualifying and non-qualifying means conjunctively. Defendant pleads guilty to the charging instrument. Does his guilty plea admit all of the allegations in the charging instrument, thus qualifying him for the enhancement?

Answer: you have to look to the law of the convicting jurisdiction to see whether a guilty plea to conjunctive allegations admits all of them or only some of them. If only some, then you have to apply the Taylor/Shepard approach to see if there are judicial documents establishing the particular statutory alterntive underlying the conviction. Let's see how that played out here.

Morales, who pled guilty to illegal reentry, had a prior Texas conviction for delivery of cocaine. Under United States v. Gonzales, the offense may or may not be a drug-trafficking offense under guideline 2L1.2. Specifically, the Texas "delivery" definition includes offers to sell, which aren't §2L1.2 drug trafficking. In the state case, Morales had pled guilty to an indictment which alleged all three means of delivery conjunctively: actual transfer, constructive transfer, and offer to sell. The Government argued that his guilty plea admitted all three means of delivery, thus qualifying him for a drug-trafficking enhancement under guideline §2L1.2.

The Court disagreed. It recognized that "[t]here is some caselaw supporting the Government's argument that a guilty plea admits all of the facts in the charging document." But as the court pointed out, "not all courts apply this rule; other jurisdictions apply a narrower rule that treats a guilty plea as admitting only those material facts needed to support the conviction." Thus, a court must determine the effect of a guilty plea in the convicting jurisdiction. In this case, that's Texas.

"Texas takes the narrower approach, treating a guilty plea as an admission of only those facts needed to support the conviction." And under Texas law governing the procedure for establishing the factual basis for a guilty plea, "the State is only required to present evidence sufficient to support the conviction[; it] need not present evidence that the defendant committed the offense according to each of the means alleged in the indictment." In this case, the Government did not present "any evidence, such as the plea colloquy or other admissions by Morales-Martinez, indicating what evidence the State presented in Morales-Martinez’s 1993 conviction or what evidence the Texas court relied on to support the conviction." Under the Taylor/Shepard approach, that's not enough to establish that Morales's conviction was for a DTO:

In this case, having nothing more than the fact of conviction and the charging document, we know only that the State offered some evidence sufficient to support conviction. The conviction, though, could have been supported if the State offered evidence that Morales-Martinez actually transferred, constructively transferred, or offered to sell cocaine. Therefore, we cannot determine, on the sole basis of Morales-Martinez’s guilty plea and the abovedescribed charging document, whether Morales-Martinez transferred cocaine or merely offered to sell cocaine.

It was therefore error for the district court to have applied the DTO enhancement in Morales's case. So sentence vacated and case remanded for resentencing.

GA Meth "Trafficking" Is a §2L1.2 DTO

United States v. Gutierrez-Bautista, No. 06-40486 (5th Cir. July 27, 2007) (Smith, Wiener, Owen)

Issue: is a Georgia conviction for methamphetamine "trafficking" under Ga. Code Ann. §16-13-31(e) a "drug trafficking offense" for purposes of U.S.S.G. §2L1.2? Before you answer, consider that although the statute is captioned "trafficking," it prohibits, among other things, the mere possession of 28 grams or more of meth. So you're guilty of "trafficking" if you possess more than the threshold quantity of drugs, regardless of whether you actually intend to distribute the meth or are simply possessing it for personal use.

Gutierrez-Bautista holds that the offense is a DTO because 1) §2L1.2 defines a DTO by reference to the conduct prohibited by a statute, rather than the elements of the offense, 2) the Georgia stautory scheme "necessarily infers an intent to distribute once a defendant possesses a certain amount of drugs," and 3) possession with intent to distribute is a DTO. The court also added that under federal law the intent to distribute can be inferred from the amount of drugs possessed, although it's hard to see what difference that makes since the parallel federal drug statute (18 U.S.C. § 841), unlike the Georgia statute at issue, makes intent to distribute an element.

The obvious flaw in this opinion is that the plain text of the trafficking statute reaches some conduct that doesn't constitute a DTO, i.e., simple possession of more than the specified quantity of drugs. It shouldn't matter that the Georgia legislature has essentially chosen to equate drug quantity with intent to distribute. Under the Fifth Circuit's approach in these cases, as long as the statute is broader than the DTO definition, and the Georgia statute is, then it doesn't qualify for the enhancement. Gutierrez-Bautista doesn't mention those cases, instead choosing to follow an Eleventh Circuit case which clearly takes a contrary approach to the question.

Be aware that Georgia isn't the only state with drug crimes labelled "trafficking" simply by virtue of the quantity of drug involved. Florida and North Carolina have similar statutes. (In fact, the Fifth Circuit has held in at least three unpublished opinions that the North Carolina trafficking offenses aren't DTO's. Of course, those decisions aren't binding precedent, but it's odd that Gutierrez-Bautista doesn't even mention them, especially when deciding to follow the conflicting law of another circuit.)

TX Poss'n of Controlled Substance With Intent to Offer to Sell Not a §2L1.2 "Drug Trafficking Offense" or a §4B1.2(b) "Controlled Substance Offense"

United States v. Ford, No. 06-20142 (5th Cir. May 24, 2007) (Davis, Dennis, Prado)

Recall that the Fifth Circuit recently held in United States v. Gonzales that the Texas offense of delivery of a controlled substance is not categorically a "drug trafficking offense" for purposes of U.S.S.G. §2L1.2(b)(1)(A) & (B). That's because the definition of "deliver" applicable to the Texas drug laws includes mere offers to sell drugs, and offers to sell fall outside the §2L1.2 definition of "drug trafficking." "Okay," you say, "instead of an actual offer to sell, what about possession with intent to offer to sell? Is that 'drug trafficking?'" Ford holds it's not.

The question in Ford is actually whether the Texas offense is a "controlled substance offense" under U.S.S.G. §4B1.2(b), rather than a "drug trafficking offense" under §2L1.2. But since the §4B1.2(b) CSO definition is virtually identical to the DTO definition found in Application Note 1(B)(iv) of §2L1.2, the court acknowledges that cases holding that offers to sell don't constitute §2L1.2 DTO's are equally applicable to the §4B1.2(b) CSO question. (That seemingly minor point is important because it means that you have to be aware of this issue not only when it comes to illegal reentry offense level calculations, but also anywhere that the §4B1.2(b) CSO definition comes into play (including §2K2.1 base offense level determinations, the career offender and armed career criminal guidelines, and possibly others).)

The court went on to conclude that if an offer to sell is not a DTO or a CSO (and Garza-Lopez and Gonzales say it's not), then it logically follows that possession with intent to offer to sell isn't either. The possession doesn't affect the analysis: "[W]hether or not possession is implicated, the operative element of 'intent to deliver,' per Gonzales, is still broader than intents found in the 'controlled substance offense' definition as 'deliver' includes an offer to [sell]. Since this operative intent element is broader, the whole conviction, regardless of the possession element, is broader than the 'controlled substance offense' definition."