U.S. v. Madera-Madera, No. 02-14474.

• Decision Date: 10 June 2003
• Docket Number: No. 02-14474.
• Citation: 333 F.3d 1228
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Antonio MADERA-MADERA, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

333 F.3d 1228

UNITED STATES of America, Plaintiff-Appellee, v. Antonio MADERA-MADERA, Defendant-Appellant.

No. 02-14474.

United States Court of Appeals, Eleventh Circuit.

June 10, 2003.

Stephanie Kearns, Fed. Pub. Def., Fed. Def. Program, Inc., Atlanta, GA, for Defendant-Appellant.

Amy Levin Weil, William H. Thomas, Jr., Atlanta, GA, for Plaintiff-Appellee.

Appeal from the United States District Court for the Northern District of Georgia.

Before BIRCH and HULL, Circuit Judges, and EDENFIELD,^* District Judge.

HULL, Circuit Judge:

After pleading guilty, Antonio Madera-Madera, an illegal alien, was sentenced to 60 months' imprisonment for unlawful reentry into the United States after deportation, in violation of 8 U.S.C. §§ 1326(a)(2) and 1326(b)(2). The sole issue on appeal is whether the district court properly concluded that Madera's prior felony drug conviction under Georgia law constitutes a "drug trafficking offense" under § 2L1.2(b)(1)(A)(i) of the Sentencing Guidelines. After review, we affirm.

I. BACKGROUND

In Gwinnett County, Georgia, Madera was indicted for possession of 400 grams of methamphetamine. Under Georgia law, any person who "has possession of 28 grams or more of methamphetamine ... commits the felony offense of trafficking in methamphetamine." O.C.G.A. § 16-13-31(e). In April 1999, Madera pled guilty to possession of 87 grams of methamphetamine in violation of O.C.G.A. § 16-13-31(e). The Georgia trial court then sentenced Madera to "a sentence of 20 years, of which 10 years shall be served in confinement, the balance of sentence shall be served on probation." However, Madera was released and removed to Mexico on May 26, 2001.

In less than two months after his removal, Madera illegally reentered the United States. On March 23, 2002, Madera was detained by INS agents, and admitted his illegal reentry.

On May 9, 2002, Madera pled guilty to the federal offense of being a previously-deported alien found unlawfully in the United States, in violation of 8 U.S.C. §§ 1326(a)(2) and 1326(b)(2). At sentencing, the district court enhanced Madera's offense level by 16 levels due to the fact that Madera's prior felony drug conviction constituted a "drug trafficking offense" under § 2L1.2(b)(1)(A)(i) of the Sentencing Guidelines. Although Madera did not contest his guilt, he objected to the 16-level enhancement and timely appealed his 60-month sentence.

II. DISCUSSION

The United State Code increases the authorized maximum penalty to 20 years' imprisonment if the illegally reentering alien's prior deportation followed "an aggravated felony" conviction. See 8 U.S.C. § 1326(b)(2). For this illegal reentry offense, § 2L1.2(a) of the Sentencing Guidelines provides for a base offense level of 8. Section 2L1.2(b), entitled "Specific Offense Characteristics," provides for enhancements ranging from 4 to 16 levels. Specifically, the enhancements increase based on the serious nature of the prior conviction as follows:

(1) Apply the Greatest:

If the defendant previously was deported, or unlawfully remained in the United States, after —

(A) a conviction for a felony that is (i) a drug trafficking offense for which the sentence imposed exceeded 13 months; (ii) a crime of violence; (iii) a firearms offense; (iv) a child pornography offense; (v) a national security or terrorism offense; (vi) a human trafficking offense; or (vii) an alien smuggling offense committed for profit, increase by 16 levels;

(B) a conviction for a felony drug trafficking offense for which the sentence imposed was 13 months or less, increase by 12 levels;

(C) a conviction for an aggravated felony, increase by 8 levels;

(D) a conviction for any other felony, increase by 4 levels ...

U.S.S.G. § 2L1.2 (emphasis added). A 16-level enhancement under § 2L1.2(b)(1)(A)(i) is warranted if Madera's Georgia felony conviction constitutes a "drug trafficking offense."¹

Therefore, we review the nature of Madera's drug trafficking conviction under Georgia law, as well as under the relevant Application Notes to, and history of, § 2L1.2(b)(1)(A)(i) of the Sentencing Guidelines.

A. Georgia's Drug Trafficking Offense

Georgia Code § 16-13-31(e) provides several means by which a defendant can be deemed guilty of drug trafficking in methamphetamine. Section 16-13-31(e) states: "[a]ny person who knowingly sells, manufactures, delivers, or brings into this state or has possession of 28 grams or more of methamphetamine ... commits the felony offense of trafficking in methamphetamine." O.C.G.A. § 16-13-31(e) (emphasis added). Therefore, under § 16-13-31(e), Madera could be found guilty of drug trafficking by possessing 28 grams or more of methamphetamine. Indeed, Madera actually pled guilty to possession of 87 grams of methamphetamine, clearly a drug trafficking offense under Georgia law.

Although Georgia law expressly designates Madera's offense as drug "trafficking," Madera argues that his prior drug offense should not be considered a trafficking offense under the Guidelines because he only possessed the drugs.² We disagree for several reasons.

First, this argument ignores the amount of drugs Madera possessed and why Georgia considers that conduct drug "trafficking." In discussing Georgia's drug statutes, the Georgia Supreme Court has explained that the Georgia legislature has enacted a three-tiered scheme for punishing those persons involved with drugs. See Bassett v. Lemacks, 258 Ga. 367, 370 S.E.2d 146 (1988). According to the Georgia Supreme Court, the three tiers are: (1) possession of any amount of a controlled substance under O.C.G.A. § 16-13-30(a); (2) manufacture, delivery, distribution, dispensing, administering, selling, or possession with intent to distribute any amount of a controlled substance under O.C.G.A. § 16-13-30(b); and (3) "trafficking" by possessing more than a designated amount of a controlled substance under O.C.G.A. § 16-13-31, which "aims at a yet more serious offense." Bassett, 258 Ga. at 370, 370 S.E.2d 146 (emphasis added). In § 16-13-31, Georgia considers possession of the following amounts of narcotics "trafficking:" 28 grams or more of cocaine or of any mixture with a purity of 10 percent or more of cocaine, see O.C.G.A. § 16-13-31(a); four grams or more of morphine or opium or any salt, isomer, or salt of an isomer thereof, including heroin, see O.C.G.A. § 16-13-31(b); 50 pounds or more of marijuana, see O.C.G.A. § 16-13-31(c); 200 grams or more of methaqualone or any mixture containing methaqualone, see O.C.G.A. § 16-13-31(d); or 28 grams or more of methamphetamine, amphetamine, or any mixture containing either methamphetamine or amphetamine, see O.C.G.A. § 16-13-31(e).

Accordingly, it must be possession of a significant quantity of drugs before Georgia deems the offense drug "trafficking." Therefore, under Georgia's three-tiered scheme, drug trafficking, the offense to which Madera pled guilty, is a more serious offense than either simple possession or possession with intent to distribute. Bassett, 258 Ga. at 370, 370 S.E.2d 146; see also Nunery v. State, 229 Ga.App. 246, 247, 493 S.E.2d 610 (1997) (stating criminal charges for selling methamphetamine under § 16-13-30(b) are lesser included offenses of charges of trafficking in methamphetamine under § 16-13-31).

Second, by selecting 28 grams as the dividing line between possession/possession with intent to distribute versus trafficking, the three-tiered Georgia drug classification system recognizes that someone who is in possession of 87 grams of methamphetamine, as was Madera, plans on distributing and thereby "trafficking" those drugs. In making possession of 28 grams of methamphetamine a "trafficking" offense, Georgia's trafficking statute necessarily infers an intent to distribute once a defendant possesses a certain amount of drugs.

As further explained by the Georgia Supreme Court, there are a number of ways the Georgia legislature could have defined drug trafficking. Bassett, 258 Ga. at 370, 370 S.E.2d 146. The Georgia legislature could have defined trafficking by the number of drug transactions an individual engaged in or the amount of money involved in a particular drug transaction. Id. The Georgia legislature elected, however, to use the amount of the controlled substance "as the basis for distinguishing the crime of trafficking from the somewhat less serious crimes" of mere possession and possession with intent to distribute. Id. The elevated drug quantities in Georgia's drug laws represent an intent to distribute and thereby traffic.

Third, the sentencing structure in Georgia's three-tier system also reflects that Georgia treats the conduct of possessing 28 grams or more of methamphetamine as evidence of an intent to distribute and thereby traffic, and as a more serious offense under Georgia law than either simple possession or possession with intent to distribute. For simple possession, an individual faces a mandatory minimum term of imprisonment of 2 years, and up to 15 years' imprisonment. O.C.G.A. § 16-13-30(c). For possession with intent to distribute, an individual faces a mandatory minimum term of imprisonment of 5 years, and up to 30 years' imprisonment. O.C.G.A. § 16-13-30(d). An individual like Madera, however, who violates § 16-13-31(e) by possessing between 28 and 200 grams of methamphetamine, and is thus guilty of drug trafficking, "shall be sentenced to a mandatory minimum term of imprisonment of ten years and shall pay a fine of $200,000.00." O.C.G.A. § 16-13-31(e)(1).³

B. Application Notes to § 2L1.2

Madera also argues that his Georgia offense does not qualify for the 16-level enhancement due to the Application Notes to § 2L1.2. The Application Notes define "drug trafficking offense" for the purposes of § 2L1.2(b)(1)(A)(i) as meaning "an 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...