Thursday, August 02, 2007

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 (In fact, the Fifth Circuit has held in at least three unpublished opinions that the North Carolina trafficking offenses aren't DTO's. Of course, those decisions aren't binding precedent, but it's odd that Gutierrez-Bautista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.)

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