U.S. v. Morales-Perez

• Decision Date: 13 November 2006
• Docket Number: No. 05-10115.,05-10115.
• Citation: 467 F.3d 1219
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Rodrigo Alejandro MORALES-PEREZ, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

467 F.3d 1219

UNITED STATES of America, Plaintiff-Appellee, v. Rodrigo Alejandro MORALES-PEREZ, Defendant-Appellant.

No. 05-10115.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted November 18, 2005.

Filed November 13, 2006.

Rene L. Valladares, Assistant Federal Public Defender, Las Vegas, Nevada, for the appellant.

Elizabeth A. Olson, United States Department of Justice, Criminal Division, Washington, D.C., for the appellee.

Appeal from the United States District Court for the District of Nevada; James C. Mahan, District Judge, Presiding. D.C. No. CR-04-00094-JCM.

Before: GOODWIN, O'SCANNLAIN, and TALLMAN, Circuit Judges.

ORDER

The panel opinion filed on May 31, 2006, is withdrawn. A substitute opinion shall be filed concurrently with this order.

Judges O'Scannlain and Tallman have voted to deny the petition for rehearing en banc, and Judge Goodwin so recommends.

The full court has been advised of the petition for rehearing en banc and no judge has requested a vote on whether to rehear the matter en banc. Fed. R.App. P. 35.

The petition for rehearing en banc is denied. No further petitions for rehearing shall be entertained.

OPINION

TALLMAN, Circuit Judge:

Rodrigo Alejandro Morales-Perez ("Morales-Perez") pled guilty to one count of unlawful reentry of a deported alien in violation of 8 U.S.C. § 1326. He appeals his 70-month sentence, arguing that the district court erred when it concluded that his prior conviction under California Health and Safety Code section 11351.5 for possession or purchase of cocaine base with intent to distribute categorically qualified as a drug trafficking offense under the United States Sentencing Guidelines. See U.S.S.G. § 2L1.2(b)(1)(A). Morales-Perez also contends that the district court erred in sentencing him above the two-year statutory maximum for convictions under 8 U.S.C. § 1326 based on his prior conviction. We affirm the district court. The definition of drug trafficking offense contained within the Sentencing Guidelines encompasses both possession and purchase with intent to distribute. See U.S.S.G. § 2L1.2 cmt. n. 1(B)(iv). Furthermore, the district court properly considered Morales-Perez's prior conviction in sentencing him above the statutory maximum. See Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). However, because Morales-Perez preserved his challenge to the district court's use of mandatory Sentencing Guidelines (a "nonconstitutional Booker error"), see United States v. Beng-Salazar, 452 F.3d 1088, 1092 (9th Cir.2006), and because we cannot say that the error was harmless beyond a reasonable doubt, we vacate the judgment and remand for full resentencing, see id. at 1095-97.

I

The district court had jurisdiction pursuant to 18 U.S.C. § 3231 and we have jurisdiction pursuant to 28 U.S.C. § 1291. We review the district court's interpretation of the Sentencing Guidelines de novo. United States v. Shumate, 329 F.3d 1026, 1028 (9th Cir.2003).

II

The base offense level for a conviction under 8 U.S.C. § 1326 is eight. U.S.S.G. § 2L1.2(a). During sentencing, the Government sought a 16-level enhancement, contending that Morales-Perez's prior California conviction for possession or purchase of cocaine base for purposes of sale qualified as a drug trafficking offense within the meaning of U.S.S.G. § 2L1.2(b)(1)(A). The Sentencing Guidelines define drug trafficking offense as "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 possession of a controlled substance (or a counterfeit substance) with intent to manufacture, import, export, distribute, or dispense." Id. § 2L1.2 cmt. n. 1(B)(iv).

Morales-Perez objected to the 16-level enhancement. Section 11351.5 states, in pertinent part: "[E]very person who possesses for sale or purchases for purposes of sale cocaine base ... shall be punished by imprisonment in the state prison for a period of three, four, or five years." C AL. HEALTH & SAFETY CODE § 11351.5. Morales-Perez argued that under the categorical approach set out by the Supreme Court in Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), the California statute is overbroad as he could have been convicted of the purchase with intent to distribute rather than the possession with intent to distribute. In other words, he argued that the "possession of a controlled substance ... with intent to manufacture, import, export, distribute, or dispense," see U.S.S.G. § 2L1.2 cmt. n.1(B)(iv), does not include the purchase of cocaine base for purposes of sale, see CAL. HEALTH & SAFETY CODE § 11351.5.

The district court rejected this argument, stating that "the federal definition of drug trafficking offense is broad enough to include the crime for which he was convicted ... no matter how you read the [California] statute." Consequently, with a three level reduction for acceptance of responsibility, Morales-Perez's total offense level was 21. He had a criminal history level of V and this placed him in the guideline range of 70-87 months. The district court sentenced Morales-Perez to 70 months imprisonment.

III

To determine whether Morales-Perez's prior conviction qualifies as a drug trafficking offense, we apply the Taylor categorical approach and "look only to the fact of conviction and the statutory definition of the prior offense." Taylor, 495 U.S. at 602, 110 S.Ct. 2143. We must ask whether "the statute criminalizes conduct that would not constitute a [drug trafficking offense] under federal sentencing law." United States v. Corona-Sanchez, 291 F.3d 1201, 1203 (9th Cir.2002) (en banc), superseded on other grounds by U.S.S.G. § 2L1.2 cmt. n. 2 (2002).

Morales-Perez contends that the definition of a drug trafficking offense reaches distribution and possession with intent to distribute, but not the purchase for purposes of sale. We disagree. The government indicted Morales-Perez for unlawful reentry on March 10, 2004, and the district court imposed the sentence on December 6, 2004. Therefore, the district court applied the amended version of U.S.S.G. § 2L1.2, which makes it clear that, for federal sentencing purposes, a "drug trafficking offense" also includes the crime of attempt to commit a drug trafficking offense. See U.S.S.G. § 2L1.2 cmt. n. 5 ("[Prior drug trafficking offenses] include the offenses of aiding and abetting, conspiring, and attempting, to commit such offenses."). Therefore, a predicate drug trafficking offense includes not only possession with intent to distribute, but attempted possession with intent to distribute.

Whether Morales-Perez was in actual possession of the cocaine base or had simply purchased the cocaine base with the intent to distribute is not significant. Even if we assume that there is a distinction between purchasing cocaine base and possessing cocaine base, the simple fact remains that had Morales-Perez been prosecuted in federal court for the same conduct which violated California law, he could have at least been prosecuted for attempted possession with intent to distribute under 21 U.S.C. §§ 841(a)(1) and 846—an offense explicitly included in the definition of "drug trafficking offense" contained within the Sentencing Guidelines. See U.S.S.G. § 2L1.2 cmt. n.5.

A federal conviction for the attempt to possess a controlled substance with intent to distribute requires the government to prove "(1) an intent to engage in criminal conduct, coupled with (2) an overt act constituting a substantial step toward the commission of the crime." United States v. Davis, 960 F.2d 820, 826-27 (9th Cir. 1992). A conviction under the purchase prong of section 11351.5 requires the State to prove that the defendant (1) purchased the cocaine base and (2) had the intent to distribute that cocaine base. CAL. HEALTH & SAFETY CODE § 11351.5; see also Cal. Jury Instr. Crim. 12.01 (2004) (stating the elements of the purchase prong to be (1) a purchase of cocaine base from another and (2) the specific intent to sell that cocaine base).

By comparing the elements of these two crimes it becomes clear that the federal crime of attempted possession with intent to distribute encompasses the state-defined crime of purchasing cocaine base for purposes of sale. The ability to prove that a defendant has (1) made a completed purchase of cocaine base and (2) had the specific intent to sell that cocaine base is more than sufficient to prove that the defendant intended to possess cocaine base with intent to distribute. Cf. United States v. Yossunthorn, 167 F.3d 1267, 1269-70 (9th Cir.1999) (stating that there was sufficient evidence to prove that the defendant intended to possess heroin with intent to distribute when he "expressed interest in purchasing [heroin]" and the defendant conducted countersurveillance of the prearranged meeting location in order to detect law enforcement).

Furthermore, the completed purchase of cocaine base is conduct sufficient to constitute a substantial step towards acquiring or possessing the cocaine base. A conviction for the attempted possession of a controlled substance with intent to distribute requires more than the mere intent to complete the crime. Id. at 1271. "Even when the defendant's intent is clear, his actions must cross the line between preparation and attempt by unequivocally demonstrating that the crime will take place unless interrupted by independent circumstances." Id. (internal quotation marks omitted). "The conduct cannot be mere preparation, [rather it] must be a substantial step ... strongly corroborative of the firmness of a defendant's criminal intent." Id...