U.S. v. Benitez-Perez, 03-10419.

• Decision Date: 20 May 2004
• Docket Number: No. 03-10419.,03-10419.
• Citation: 367 F.3d 1200
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. David BENITEZ-PEREZ, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

367 F.3d 1200

UNITED STATES of America, Plaintiff-Appellee, v. David BENITEZ-PEREZ, Defendant-Appellant.

No. 03-10419.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 13, 2004.

Filed May 20, 2004.

Fred Atcheson, Reno, NV, for the appellant.

Craig S. Denny, Assistant United States Attorney, Reno, NV, for the appellee.

Appeal from the United States District Court for the District of Nevada; Howard D. McKibben, District Judge, Presiding. D.C. No. CR-02-00192-HDM.

Before WALLACE, KOZINSKI, and THOMAS, Circuit Judges.

THOMAS, Circuit Judge.

David Benitez-Perez appeals the district court's enhancement of his offense level by 16 levels pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(i) based on his prior conviction for violating Nevada Revised Statute § 453.337. We review the district court's decision that a prior conviction is a qualifying offense de novo, United States v. Hernandez-Valdovinos, 352 F.3d 1243, 1246 (9th Cir.2003), and we affirm.

I

In the summer of 2002, local authorities in Reno, Nevada were dispatched to a motel on a domestic battery complaint. When officers arrived, Benitez-Perez, a citizen of Mexico, had already driven away from the scene. Upon his return, however, officers discovered that he had over a .12% blood alcohol content and 26.82 grams of methamphetamine in his vehicle. Benitez-Perez was convicted subsequently on November 6, 2002 of driving under the influence and Trafficking a Controlled Substance.

While Benitez-Perez was in state custody, immigration officials discovered that he was in the United States illegally, having been deported approximately ten years earlier for a previous drug offense. Consequently, Benitez-Perez was indicted by a grand jury for willfully being in the United States unlawfully in violation of 8 U.S.C. § 1326(a) after a previous arrest and deportation.

Benitez-Perez' prior arrest occurred in 1991, when he was charged with five counts of illegal drug-related activity, namely: (1) possession of a trafficking quantity of a controlled substance in violation of NRS § 453.3385 and § 453.3405; (2) possession of a controlled substance in violation of NRS § 453.336; (3) possession of a controlled substance for the purpose of sale in violation of 453.337; (4) unlawful sale of a controlled substance in violation of NRS § 453.321; and (5) conspiracy to sell a controlled substance in violation of NRS § 453.401. Ultimately, Benitez-Perez pled guilty to Count III of the Nevada Information and the other charges were dismissed. As a result, a final judgment was entered on January 22, 1992, determining that "David Benitez-Perez is guilty of the crime of Possession of a Controlled Substance For the Purpose of Sale as charged in Count III of the Information."

For his 1992 conviction, Benitez-Perez was sentenced to state prison for four years. Shortly after nine months in incarceration, Benitez-Perez was paroled and deported to Mexico.

Benitez-Perez also entered a guilty plea to the § 1326(a) charge before us. The Presentence Investigation Report (PSR) recommended a 16 offense level enhancement based on his 1992 "drug trafficking" offense pursuant to U.S.S.G. § 2L1.2(b)(1)(A). The PSR set Benitez-Perez' offense level at 21 after a three level reduction for acceptance of responsibility. Combined with a criminal history category of IV, the PSR recommended a sentence in the mid-range of the 57-71 month Guideline range.

Benitez-Perez objected to the 16 level enhancement, claiming that the prior Nevada conviction was not a qualifying predicate offense, and that he was paroled before his sentence exceeded 13 months as required by U.S.S.G. § 2L1.2(b)(1)(A)(i). He also objected to the calculation of the criminal history category.

After holding a sentencing hearing on July 11, 2003, the district court granted the objection on criminal history grounds and set the criminal history at category III. However, the district court imposed a 16 level enhancement, denying both objections to that adjustment.

In reaching this conclusion, the district court applied a two prong analysis considering (1) "whether the full range of [drug trafficking] conduct encompassed by the statute of conviction is punishable under the Controlled Substances Act"; and (2) if the statute criminalizes a greater amount of activity than punishable under the Controlled Substances Act, the court would examine "documentation or judicially noticeable facts that clearly establish that the conviction is a predicate conviction for enhancement purposes."

Under this analysis, the district court was satisfied that the 1992 Nevada conviction was a crime "punishable under the Controlled Substances Act." The court also held that the crime was a felony because Benitez-Perez was sentenced to a term of four years. Since the court determined that "possession for sale" fit the definition of "drug trafficking" under the Guidelines, it denied the objection. The district court further explained that it found no authority that parole by an independent body could reduce Benitez-Perez' original sentence and render it inadequate for § 2L1.2(b)(1)(A)(i) purposes. Applying the enhancement, the district court set Benitez-Perez' offense level at 21 and, with a criminal history category III, the court calculated a sentencing range of 46-57 months and sentenced him to 51 months imprisonment.

Although it conducted the analysis that would have sustained the 16 level upward adjustment as recommended by the PSR, at the sentencing hearing the district court erroneously analyzed Benitez-Perez' § 2L1.2(b)(1)(A)(i) 16 level enhancement under an outdated "aggravated felony," rather than the applicable "drug trafficking," provision. However, neither the government nor the defendant called this error to the district court's attention. Final judgment was entered, and Benitez-Perez timely appealed.

II

U.S.S.G. § 2L1.2(b)(1)(A)(i) provides for a 16 level enhancement if the defendant was previously deported after 6429 "a drug trafficking offense for which the sentence imposed exceeded 13 months." To qualify as a predicate drug trafficking offense, the prior conviction must violate:

[a] 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)(iii) (2002). To determine whether a prior conviction qualifies as a predicate offense for the 16 level enhancement under § 2L1.2(b)(1)(A), we apply the categorical approach established in Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). See United States v. Pimentel-Flores, 339 F.3d 959, 967-68 (9th Cir.2003) (holding the categorical approach applies to § 2L1.2 after the 2001 amendments).

In conducting a Taylor analysis, courts do not examine the underlying facts of the prior offense, but "`look only' to the fact of conviction and the statutory definition of the prior offense." United States v. Corona-Sanchez, 291 F.3d 1201, 1203 (9th Cir.2002) (en banc) (quoting Taylor, 495 U.S. at 602, 110 S.Ct. 2143). Thus, under this "categorical approach" we must first look to the statute of conviction to determine if the offense would qualify as a "drug trafficking" offense for § 2L1.2 purposes. In a "narrow range of cases" where the statute criminalizes conduct that would not constitute a drug trafficking offense, a modified categorical approach may be applied so the court can examine "`documentation or judicially noticeable facts that clearly establish that the conviction is a predicate conviction for enhancement purposes.'" Id. (quoting United States v. Rivera-Sanchez, 247 F.3d 905, 908 (9th Cir.2001) (en banc)). Under the modified categorical approach, if "judicially noticeable facts would allow the defendant to be convicted of an offense other than that defined as a qualifying offense," it cannot be used to enhance a defendant's sentence. Id. (quoting United States v. Casarez-Bravo, 181 F.3d 1074, 1077 (9th Cir.1999)).

Applying the Taylor analytical model to our case demonstrates unequivocally that the 1992 conviction qualifies as a drug trafficking offense that justifies the 16 level enhancement. Benitez-Perez's conviction was for a violation of NRS § 453.337.1 which provides that "it is unlawful for a person to possess for the purpose of sale ... any controlled substance classified in schedule I or II." Based on this statute of conviction, the only conduct criminalized is possession of a controlled substance for the purpose of sale. This crime fits comfortably within a drug trafficking offense as defined by § 2L1.2. See Hernandez-Valdovinos, 352 F.3d at 1248. Because the statute does not reach conduct outside of a drug trafficking offense under § 2L1.2, Taylor's categorical analysis is satisfied and the 16 level enhancement was properly applied.

Benitez-Perez argues that the intent of the drug trafficking provision of the Guidelines is aimed at an actual drug "trafficking" offense, and therefore the 1992 "possession for sale" conviction should not qualify. He notes that the specific charges of drug trafficking against him were dismissed. This argument, however, is foreclosed by the plain words of the guideline which includes as a qualifying offense possession with intent to distribute or dispense.

III

Benitez-Perez also contends that the 1992 conviction cannot serve as a qualifying drug trafficking offense because he did not serve more than 13 months in prison, as required by § 2L1.2(b)(1)(A)(i). He points to a U.S.S.G. application note which provides that "[i]f all or any part of a sentence of imprisonment was probated, suspended, deferred, or stayed, `sentence imposed' refers only to the portion that was not probated, suspended, deferred, or stayed." U.S.S.G. § 2L1.2 Application ...