U.S. v. Gutierrez-Ramirez, 03-41742.

• Decision Date: 05 April 2005
• Docket Number: No. 03-41742.,03-41742.
• Citation: 405 F.3d 352
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Arturo GUTIERREZ-RAMIREZ, a/k/a Rodrigo Vaca, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

405 F.3d 352

UNITED STATES of America, Plaintiff-Appellee, v. Arturo GUTIERREZ-RAMIREZ, a/k/a Rodrigo Vaca, Defendant-Appellant.

No. 03-41742.

United States Court of Appeals, Fifth Circuit.

April 5, 2005.

Renata Ann Gowie (argued), James Lee Turner, Asst. U.S. Attys., Houston, TX, for U.S.

Marjorie A. Meyers, Fed. Pub. Def., Richard Bruce Gould, Laura Fletcher Leavitt (argued), Asst. Fed. Pub. Def., Houston TX, for Defendant-Appellant.

Appeal from the United States District Court for the Southern District of Texas.

Before DAVIS, SMITH and DeMOSS, Circuit Judges.

W. EUGENE DAVIS, Circuit Judge:

Defendant Arturo Gutierrez-Ramirez (Gutierrez-Ramirez) challenges a 16-level enhancement of his sentence based on a prior conviction for a "drug trafficking offense" as authorized by § 2L1.2 (b)(1)(A)(i) of the United States Sentencing Guidelines ("Guidelines"). We conclude that the district court erred in using a California abstract of judgment to determine whether the defendant's prior California conviction qualified as a "drug trafficking offense." We therefore VACATE Gutierrez-Ramirez's sentence and REMAND for resentencing in accordance with this opinion and the Supreme Court's recent opinion in United States v. Booker, ___ U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).

I.

Gutierrez-Ramirez pleaded guilty to the offense of illegal re-entry into the United States after deportation in violation of 8 U.S.C. § 1326(a) & (b).¹ The Presentencing Report ("PSR") recommended a base offense level of 8 pursuant to § 2L1.2 of the United States Sentencing Guidelines ("Guidelines"),² and a 16-level enhancement for a past conviction of a "drug trafficking offense for which the sentence imposed exceeded 13 months" pursuant to § 2L1.2 (b)(1)(A)(i) of the Guidelines.³ The recommended enhancement was based on Gutierrez-Ramirez's 1995 California conviction for violating Cal. Health & Safety Code § 11352(a) ("§ 11352 conviction").⁴ The PSR also recommended a two-level reduction for acceptance of responsibility resulting in a total offense level of 22.

Gutierrez-Ramirez objected to the PSR's characterization of his § 11352 conviction as a "drug trafficking offense." His written objection stated:

"[W]ithout seeing the indictment, and knowing the precise statute under which the convictions were obtained (as well as the elements of the offenses of conviction), it is urged that same are no more than aggravated felonies, triggering an eight-level upward adjustment." R. 1, 19.(Parenthetical in original).

At the sentencing hearing, Gutierrez-Ramirez's attorney again objected to the 16-level enhancement, this time arguing:

"I had filed an objection on the basis that the statute under which [Gutierrez-Ramirez] was convicted permits a conviction for transportation of a controlled substance, and it is our position that merely transporting a controlled substance would not be a drug trafficking offense ..." R. 3, 4.

In response, the district court asked the government to provide a copy of the indictment or judgment for the § 11352 conviction. The government was able to locate neither, but the Probation Officer produced the abstract of judgment, which the district court accepted. Because the abstract identified the § 11352 conviction as "sell cocaine," the district court concluded that Gutierrez-Ramirez's past conviction was not based on the much broader "transportation section" of § 11352, and thus qualified as a "drug trafficking offense."

After deducting another point for acceptance of responsibility, the district court determined that Gutierrez-Ramirez's total offense level was 21. His criminal history category of V resulted in a Guidelines sentence range of 70 to 87 months.⁵ Gutierrez-Ramirez was sentenced to 70 months' imprisonment, and took this appeal.

II.

A.

Gutierrez-Ramirez argues first that the district court improperly used an abstract of judgment to decide that his § 11352 conviction qualified as a "drug trafficking offense." The government argues that, because Gutierrez-Ramirez filed a general objection to the enhancement, and did not specifically object to the district court's use of the abstract of judgment, we should review this issue for plain error. We disagree.

The purpose of requiring a defendant to object to preserve an issue for review is to encourage defendants to call the court's attention to the potential error "in such a manner so that the district court may correct itself and thus, obviate the need for [appellate] review." United States v. Rodriguez, 15 F.3d 408, 414 (5th Cir.1994) (quoting United States v. Bullard, 13 F.3d 154, 156 (5th Cir.1994)). As discussed above, Gutierrez-Ramirez filed written objections to the PSR in which he argued that, without referring to the indictment, it was impossible to say whether his § 11352 conviction qualified as a "drug trafficking offense." He also renewed his objection by orally objecting at the sentencing hearing, and argued that § 11352 was too broad to qualify as a "drug trafficking offense." The transcript of the sentencing hearing reflects that the district court considered the propriety of using the abstract of judgment.⁶ We conclude that appellant's objection was specific enough to preserve his challenge to the enhancement before this court. Therefore, we review the district court's enhancement de novo. United States v. Calderon-Pena, 383 F.3d 254, 256 (5th Cir.2004) (en banc), cert. denied, ___ U.S. ___, 125 S.Ct. 932, 160 L.Ed.2d 817(2005).

B.

Gutierrez-Ramirez argues next that, using the categorical approach this court employed in Calderon-Pena, his 1995 conviction for violating § 11352 does not qualify as a "drug trafficking offense" under the Guidelines.⁷ The government does not seriously challenge that, if the categorical approach applies in this case, § 11352 can be violated by conduct that would not constitute a "drug trafficking offense." The government argues that under United States v. Rodriguez-Duberney, 326 F.3d 613 (5th Cir.2003), we need not use the categorical approach to review the propriety of a Guidelines enhancement for a prior "drug trafficking offense," but rather may look to sources such as the PSR for the underlying facts of the prior conviction.

In Rodriguez-Duberney, the defendant argued that his previous conviction for violating the Travel Act (18 U.S.C. § 1952) was not a "drug trafficking offense" in light of United States v. Gracia-Cantu, 302 F.3d 308 (5th Cir.2002) and United States v. Chapa-Garza, 243 F.3d 921 (5th Cir.2001), two cases using the categorical approach. Id. at 616. The court distinguished Gracia-Cantu and Chapa-Garza on the grounds that the Guidelines definition of "crime of violence," at issue in those cases, included the words "by its nature," and this phrase required the courts in Gracia-Cantu and Chapa-Garza to use the categorical approach.⁸ Id. Thus, because the Guidelines definition of "drug trafficking offense" does not include the "by its nature" language, the panel in Rodriguez-Duberney declined to follow the categorical approach. Id. at 617.

Although Rodriguez-Duberney did decline to use the categorical approach and look only to the elements of the offense of the prior conviction, the court did not authorize reference to a source other than the indictment to determine whether the prior conviction could be classified as a "drug trafficking offense." We therefore do not read Rodriguez-Duberney to give the district court carte blanche authority to consider sources beyond the indictment and jury instructions to determine whether defendant's prior conviction qualifies for a sentencing enhancement under the Guidelines.⁹

The government next argues that, while our caselaw may forbid considering underlying facts in the PSR to determine whether the prior offense qualifies as a "drug trafficking offense," it does not prohibit a sentencing court from considering information in an abstract of judgment. We generally have interpreted Taylor to allow courts to look to limited parts of the record, such as the indictment and jury instructions, to determine whether a defendant was convicted under part of a statute that meets the enhancement definition.¹⁰ In United States v. Navidad-Marcos, 367 F.3d 903 (9th Cir.2004), the Ninth Circuit carefully considered whether to include California abstracts of judgment as a source to identify the defendant's conduct in a prior conviction, and we find its opinion persuasive in this case.

In Navidad-Marcos, the defendant argued that his prior conviction for violating Cal. Health and Safety Code § 11379(a) did not qualify as a "drug trafficking offense" under the Guidelines. Id. at 906. The district court agreed that § 11379 could be violated by conduct that would not qualify as "drug trafficking." Id. The sentencing judge then looked to the abstract of judgment for the § 11379 conviction, which identified the offense as "Transport/sell cont. sub." Id. Based on this, the district court determined that the defendant had been convicted under a section of § 11379 that met the definition of "drug trafficking." Id.

The Ninth Circuit reversed. The panel agreed that the defendant's prior conviction did not "facially qualify" for the 16-level enhancement, but held that because the abstract of judgment was not sufficient to "unequivocally establish" that the defendant actually sold illegal drugs, the district court erred in relying exclusively on the abstract to support the enhancement. Id. at 907. Under California law, the court stated, "an abstract of judgment is not the judgment of conviction; it does not control if different from the trial court's oral judgment and may not add to or modify the judgment it purports to digest or summarize." Id. at 908. (quoting People v. Mitchell, 26 Cal.4th 181, 109 Cal.Rptr.2d 303, 26 P.3d 1040, 1042 (2001)). In addition, the court explained that "[p]reparation of the abstract is a clerical, not a judicial function." Id. at 909. (citing People v....