Monday, April 16, 2007

TX Conviction for Delivery of a Controlled Substance Not a §2L1.2 DTO, If Conviction Could Have Been Based on an "Offer to Sell"

United States v. Gonzales, No. 05-41221 (5th Cir. Mar. 7, 2007) (per curiam) (King, Wiener, Owen)

When is a prior conviction for delivery of a controlled substance not a prior "drug trafficking offense" for purposes of the enhancements under U.S.S.G. §2L1.2? When the prior offense could have been commited by merely offering to sell a controlled substance, conduct which falls outside the applicable definition of "drug trafficking." The Fifth Circuit so held in United States v. Garza-Lopez, a case involving one of several California controlled substance statutes that encompass a rather broad set of conduct, much of which does not constitute §2L1.2 DTO.

The same issue cropped up here in Gonzales, an illegal reentry case in which the defendant received a 16-level DTO enhancement on the basis of a prior Texas conviction for delivery of a controlled substance. The applicable statute, Tex. Health & Safety Code § 481.112, prohibits manufacturing, delivering, or possessing with intent to deliver a controlled substance. A separate statute, Tex. Health & Safety Code § 481.002, defines "deliver" to include the actual or constructive transfer of a controlled substance, as well as an offer to sell a controlled substance. Under Garza-Lopez the offer-to-sell alternative is not a §2L1.2 DTO, and Gonzales' prior delivery conviction therefore did not necessarily qualify for the DTO enhancement.

Of course, since actual or constructive transfer of a controlled substance would be a DTO, the court took a gander at the charging papers and so forth from Gonzales' prior conviction to see if they pared down § 481.112 to one of those two DTO alternatives. The state indictment alleged all three statutory alternatives conjunctively (actual transfer AND constructive transfer AND offer to sell), and the jury instructions informed the jury that Gonzales was charged with "delivery" and that an offer to sell can constitute delivery. Texas law allows conjunctive pleading and disjunctive proof, so "even though the indictment charged Gonzales with actually transferring, constructively transferring, and offering to sell a controlled substance, the jury could have convicted him based on an offer to sell alone." "Because the indictment and jury instructions permitted the jury to convict Gonzales for behavior that does not constitute a drug-trafficking offense (i.e., offering to sell a controlled substance)," the Government failed to carry its burden on the DTO issue and the district court erred in applying the DTO enhancement.

This case is important not only because it's common to see 1326 cases with Texas delivery priors, but also because it serves as an important reminder that you can't stop with the statutory or common-law offense definition when determining whether a prior conviction qualifies as a "drug trafficking offense" or a "crime of violence" or whatever. Many terms, even seemingly straightforward terms like "deliver," may actually be defined terms, and those definitions may not track the everyday or dictionary definitions of the term. Finding those definitions can be tricky because they're not always in the same statute that defines the offense, sometimes they're not even close-by in the code, and sometimes they're not even defined in statutes at all and you have to look to definitions in case law. But here's a handy tip that Westlaw users can employ to unearth those elusive defintions: use the words & phrases field restrictor in your terms and connectors search. For example, to find out if Texas defines the term delivery, use this term in your search: WP(deliver!). It'll find every instance in which that term is defined, and works in statutory and case law databases. (I assume Lexis has a similar search ability.)

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