Friday, May 25, 2007

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."

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