U.S. v. Garza-Lopez

• Decision Date: 19 May 2005
• Docket Number: No. 03-41750.,03-41750.
• Citation: 410 F.3d 268
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Oscar GARZA-LOPEZ, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

410 F.3d 268

UNITED STATES of America, Plaintiff-Appellee, v. Oscar GARZA-LOPEZ, Defendant-Appellant.

No. 03-41750.

United States Court of Appeals, Fifth Circuit.

May 19, 2005.

COPYRIGHT MATERIAL OMITTED

Jeffery Alan Babcock (argued), James Lee Turner, Asst. U.S. Atty., Houston, TX, for U.S.

Marjorie A. Meyers, Fed. Pub. Def., Yvonne Sanchez, Philip G. Gallagher (argued), Samy K. Khalil, Houston, TX, for Garza-Lopez.

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

Before KING, Chief Judge, and GARZA and BENAVIDES, Circuit Judges.

KING, Chief Judge:

Defendant-Appellant Oscar Garza-Lopez pled guilty to being knowingly and unlawfully present in the United States following deportation, in violation of 8 U.S.C. § 1326(a) and (b). At sentencing, the district court increased his offense level by sixteen points pursuant to UNITED STATES SENTENCING GUIDELINES ("U.S.S.G.") § 2L1.2(b)(1)(A)(i) (2003), which authorizes an enhancement if the defendant previously was convicted of a "drug trafficking offense" for which the sentence exceeded thirteen months. Garza-Lopez now appeals his sentence of seventy-seven months, arguing: (1) the "felony" and "aggravated felony" provisions of 8 U.S.C. § 1326(b) are unconstitutional; (2) the district court erred by enhancing his sentence under § 2L1.2(b)(1)(A)(i); and (3) the district court erred by sentencing him under the mandatory guidelines regime held to be unconstitutional in United States v. Booker, ___ U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). For the following reasons, we VACATE and REMAND Garza-Lopez's sentence.

I. FACTUAL AND PROCEDURAL BACKGROUND

On February 19, 2003, Garza-Lopez was deported from the United States to Mexico. On July 27, 2001, prior to his deportation, he was convicted in the Superior Court of California, Kern County, Bakersfield, of transporting/selling a controlled substance, namely methamphetamine, under CAL. HEALTH & SAFETY CODE § 11379(a). Garza-Lopez was sentenced to three years imprisonment for this offense.

On July 15, 2003, Border Patrol agents found Garza-Lopez at the Hidalgo County Jail in Edinburg, Texas. Because he had not previously obtained permission to re-enter the United States after being deported in February of 2003, he was indicted with being illegally present in the United States. He pled guilty to this charge.

On December 11, 2003, the district court sentenced Garza-Lopez. In the Presentence Report (the "PSR"), which applied the 2003 edition of the Guidelines Manual, the probation officer scored Garza-Lopez at a base offense level of eight. He then increased his offense level by sixteen points pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(i), which authorizes a sixteen-point enhancement if the defendant has been convicted of a prior "drug trafficking offense" for which the sentence imposed exceeded thirteen months. The PSR stated that the basis for this enhancement was Garza-Lopez's 2001 conviction under CAL. HEALTH & SAFETY CODE § 11379(a).

At sentencing, the district court granted a two-level reduction in Garza-Lopez's offense level for timely acceptance of responsibility. The government requested an upward departure for under-representation of Garza-Lopez's criminal history and an additional one-level reduction for timely acceptance of responsibility. Garza-Lopez objected to the upward departure and moved for a downward departure. The district court granted the request for an additional one-level downward departure for acceptance of responsibility, and it denied the government's request for an upward departure. The district court then adopted the revised PSR (including the sixteen-level enhancement for Garza-Lopez's "drug trafficking" conviction under § 11379(a)), and it concluded that Garza-Lopez's criminal history category was VI. Accordingly, the punishment range under the Sentencing Guidelines was seventy-seven to ninety-six months. The district court sentenced Garza-Lopez to seventy-seven months, the low end of the applicable range, to be followed by a two-year term of supervised release. The court also imposed a $100 special assessment.

On December 17, 2003, Garza-Lopez filed a timely notice of appeal of his sentence. In his original appellate brief, he raised only one issue: whether the "felony" and "aggravated felony" provisions of 8 U.S.C. § 1326(b) are unconstitutional. The government responded by moving for summary affirmance. On June 16, 2004, before this court ruled on the motion for summary affirmance, Garza-Lopez moved for leave to file a supplemental brief. The court granted Garza-Lopez's motion. As a result, Garza-Lopez filed a supplemental brief in which he argued that the district court erred when it imposed the sixteen-level enhancement under § 2L1.2(b)(1)(A)(i) on the basis of his prior conviction under § 11379(a). Garza-Lopez also filed an unopposed motion to supplement the record, requesting permission to include in the record the state court charging instrument for his conviction under § 11379(a), which this court granted. Finally, on February 16, 2005, Garza-Lopez, with the permission of this court, filed a supplemental letter brief addressing the effect of Booker on his appeal.

II. ANALYSIS

A. The Sixteen-Level Enhancement

Garza-Lopez argues that the district court committed plain error by enhancing his sentence by sixteen levels on the basis of his 2001 conviction under § 11379(a). According to Garza-Lopez, § 11379(a) criminalizes a variety of conduct, including acts that cannot form the basis for a sentencing enhancement under § 2L1.2(b)(1)(A)(i).

Garza-Lopez states that under § 2L1.2(b)(1)(A)(i) of the Sentencing Guidelines, a defendant's offense level is increased by sixteen levels if he has previously been convicted of a "drug trafficking offense for which the sentence imposed exceeded 13 months." The Sentencing Guidelines define a "drug trafficking offense" as:

[A]n offense under federal, state, or local law that prohibits the manufacture, import, export, distribution, or dispensing of 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.

U.S.S.G. § 2L1.2, Application Note 1(B)(iv). As Garza-Lopez notes, in the present case, the PSR stated that Garza-Lopez had been convicted of such a "drug trafficking offense," namely the offense of "[t]ransport/sell methamphetamine" under § 11379(a). Garza-Lopez argues that the district court erred because it relied on the PSR and because the language of § 11379(a) was too broad to establish that he had committed a "drug trafficking offense."¹ In support of this claim, Garza-Lopez cites United States v. Navidad-Marcos, 367 F.3d 903 (9th Cir.2004), in which the Ninth Circuit held, in a case with similar facts, that "§ 11379(a) was too broad to establish a predicate offense justifying the [sixteen]-level enhancement." Id. Garza-Lopez argues that this court should follow the logic of the Ninth Circuit's decision in Navidad-Marcos and hold that the district court erred in enhancing his offense level by sixteen levels because § 11379(a) is too broad to have permitted an enhancement under U.S.S.G. § 2L1.2(b)(1)(A). He further argues that the district court's error affected his substantial rights because, absent the sixteen-level enhancement, he would have been facing an imprisonment range of only thirty-three to forty-one months.

Because Garza-Lopez did not object below to the district court's imposition of the sixteen-level increase, this court reviews the district court's imposition of the enhancement for plain error. See United States v. Villegas, 404 F.3d 355, 356 (5th Cir.2005). This court finds plain error when: (1) there was an error; (2) the error was clear and obvious; and (3) the error affected the defendant's substantial rights. Id.; United States v. Olano, 507 U.S. 725, 732-37, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). When these three conditions are all met, this court may exercise its discretion to correct the error only if the error "seriously affects the fairness, integrity, or public reputation of judicial proceedings." United States v. Mares, 402 F.3d 511, 520 (5th Cir.2005) (quoting United States v. Cotton, 535 U.S. 625, 631, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002)).

In reviewing Garza-Lopez's claim of plain error, we begin by determining whether the district court committed an error and whether that error was plain. Villegas, 404 F.3d 355, 357-362. In resolving Garza-Lopez's claim that the district court erred by misapplying § 2L1.2(b)(1)(A), we review the district court's interpretation and application of the Guidelines de novo. Id.

Under the categorical approach set forth in Taylor v. United States, 495 U.S. 575, 602, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), a district court looks to the elements of a prior offense, rather than to the facts underlying the conviction, when classifying a prior offense for sentence enhancement purposes. See also United States v. Gracia-Cantu, 302 F.3d 308, 309 (5th Cir.2002). In a "narrow range of cases," however, a district court may look beyond the elements of the offense when making such a determination. Taylor, 495 U.S. at 602, 110 S.Ct. 2143. In such cases, courts are not free to consider any facts, but may consider the statutory definition of the offense, the charging paper, and the jury instructions. See United States v. Allen, 282 F.3d 339, 343 (5th Cir.2002) (citing Taylor, 495 U.S. at 601, 110 S.Ct. 2143). This court has held that the determination of whether a "drug trafficking offense" was committed falls into the narrow range of cases where the court may consider information other than the statutory definition of the offense. United States v. Rodriguez-Duberney, 326 F.3d 613, 616-17 (5th Cir.2003) ("We therefore decline to extend the Gracia-Cantu categorical approach to § 2L1.2(b)(1)(A)(i)."). Thus, courts making...