U.S. v. Palacios-Quinonez

• Decision Date: 29 November 2005
• Docket Number: No. 05-10323.,05-10323.
• Citation: 431 F.3d 471
• Parties: UNITED STATES of America, Plaintiff-Appellee. v. Ismael PALACIOS-QUINONEZ, Defendant-Appellant,
• Court: U.S. Court of Appeals — Fifth Circuit

431 F.3d 471

UNITED STATES of America, Plaintiff-Appellee. v. Ismael PALACIOS-QUINONEZ, Defendant-Appellant,

No. 05-10323.

United States Court of Appeals, Fifth Circuit.

November 29, 2005.

Susan B. Cowger, Dallas, TX, for U.S.

Ira Raymond Kirkendoll, Fed. Pub. Def., Dallas, TX, for Defendant-Appellant.

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

Before DAVIS, SMITH and DENNIS, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Ismael Palacios-Quinonez appeals his sentence. Finding no reversible error, we affirm.

I.

Palacios-Quinonez is a Mexican national who pleaded guilty to having reentered the United States illegally following his removals in 1995 and 2000. At sentencing, his base offense level of 8 was increased by a sixteen-level enhancement pursuant to U.S.S.G. § 2L1.2(b)(1)(A) (2004) because he had unlawfully remained in the United States after being convicted in 1992 of a crime of violence and in 1990 of a felony drug trafficking offense for which the sentence imposed was greater than 13 months. The enhancement was based on his California convictions of "possession for sale" of cocaine and assault causing great bodily injury.

Based on the new offense level, Palacios-Quinonez's guidelines sentence range was 46-57 months' imprisonment and two to three years' supervised release. He objected to the 16-level enhancement (arguing that his California offenses were not covered by § 2L1.2(b)(1)(A)). He also contended that 8 U.S.C. § 1326(b)(1) and (2) should be treated as separate offenses instead of sentencing factors and that Almendarez-Torres v. United States, 523 U.S. 224, 239-47, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), was incorrectly decided and should be overruled.

At sentencing, which occurred after the issuance of United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), the district court adopted the sentence range found in the presentence report and sentenced Palacios-Quinonez to 46 months' imprisonment and two years' supervised release. On appeal, Palacios-Quinonez raises four issues: (a) whether his California conviction of aggravated assault qualifies as a crime of violence; (b) whether a conviction of "purchase for purposes of sale" of cocaine constituted a drug trafficking offense under § 2L1.2(b)(1)(A); (c) whether § 1326(b)(1) and (2) should be treated as separate offenses instead of sentencing factors; and (d) whether Almendarez-Torres should be overruled.

II.

Palacios-Quinonez contends, for the first time on appeal, that his California conviction of possession for sale of cocaine does not qualify as a drug trafficking offense. In the district court he objected to this conviction on the ground that he did not receive a sentence of thirteen months or more. Because he did not challenge the application of the sixteen-level enhancement on the same ground as he challenges it in this court, he did not preserve the error for appeal, so we review only for plain error. See United States v. Mares, 402 F.3d 511, 516, 520 (5th Cir.), cert. denied, ___ U.S. ___, 126 S.Ct. 43, 163 L.Ed.2d 76 (2005).

To establish plain error, Palacios-Quinonez must demonstrate that (1) there is an error, (2) that is plain by being clear or obvious, and (3) that affects his substantial rights. United States v. Olano, 507 U.S. 725, 731-37, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). Absent the enhancement, Palacios-Quinonez's guidelines sentencing range would have been 18-24 months, substantially less than the 46 months he received, so an error in the application of the enhancement would affect his substantial rights. See United States v. Garza-Lopez, 410 F.3d 268, 275 (5th Cir.), cert. denied, ___ U.S. ___, 126 S.Ct. 298, 163 L.Ed.2d 260 (2005). Accordingly, the issues for this court are whether the district court erred in finding that Palacios-Quinonez's conviction was for a drug trafficking offense and whether the error was plain. See Olano, 507 U.S. at 731-37, 113 S.Ct. 1770.

Pursuant to § 2L1.2(b)(1)(A)(i), a sixteen-level enhancement applies if, before removal, the defendant was convicted of a felony that was "a drug trafficking offense for which the sentence imposed exceeded 13 months." Under this provision, a drug trafficking offense "means an offense under federal, state, or local law that prohibits the manufacture, 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." § 2L1.2 cmt. n.(1)(B)(iv). To determine whether a conviction qualifies as a drug trafficking offense under § 2L1.2(b)(1)(A)(i), we follow Taylor v. United States, 495 U.S. 575, 602, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), which directs us, when classifying a prior offense for sentence enhancement purposes, to look to the elements rather than to the facts underlying the conviction. See Garza-Lopez, 410 F.3d at 273. But, in some cases, including those involving a determination of whether a drug trafficking offense was committed, a court may also consider three additional factors: the statutory definition of the offense, the charging paper, and the jury instructions. Id.

Both parties agree that Palacios-Quinonez was convicted under CAL. HEALTH & SAFETY CODE § 11351, and the government has supplemented the record to show that the conviction was under that statute. One can be convicted under that statute if he either "possesses for sale" or "purchases for purposes of sale" certain narcotics, including cocaine. Palacios-Quinonez contends that although "possession for sale" qualifies as a drug trafficking offense, "purchase for sale" does not, and thus the enhancement was improper because it is impossible to determine under which prong of the statute he was convicted. We concur in that narrow assertion¹ but do not agree that "purchase for purposes of sale" does not involve "possession" with intent to distribute as required by the guidelines.

We are persuaded by United States v. Estrada-Soto, 113 Fed.Appx. 223, 224 (9th Cir.2004) (mem.), cert. denied, ___ U.S. ___, 125 S.Ct. 1430, 161 L.Ed.2d 200 (2005), that "`[p]urchase' of cocaine for the purpose of sale is not obviously different from, or broader than," constructive possession. In California, "constructive possession includes maintaining control over, or the right to control, controlled substances." Id. (citing People v. Showers, 68 Cal.2d 639, 68 Cal.Rptr. 459, 440 P.2d 939 (1968); California Jury Instructions-Criminal 12.01). Similarly, a completed purchase transfers the "legal" right to control the substance from the seller to the purchaser or his agents.

Palacios-Quinonez argues that under California law, namely Armstrong v. Superior Court, 217 Cal.App.3d 535, 539-40, 265 Cal.Rptr. 877 (1990), "it is possible to purchase controlled substances without actually or constructively possessing them." This theory is without merit.

First, Armstrong dealt with a situation involving an inchoate offense under a different statute (possession of a controlled substance). There, evidence existed that the undercover police officer selling the drugs was not willing to let the purchaser exercise his right to control the drugs. Id. at 538, 265 Cal.Rptr. 877 (noting that the defendant was arrested before delivery of the drugs and that the seller testified he was not "going to ... let a pound of methamphetamine walk away"). As Armstrong clarifies, its holding advances the unremarkable proposition that an (uncompleted) attempt to possess is not the same as (completed) possession, actual or constructive:

Here, there is evidence petitioner exercised some control over the physical setting in which the sale was to take place. He initiated the sale process of the drugs. He agreed to meet the officer at a particular location. He paid Officer Heggestuen. He was prepared to take immediate physical possession of the drugs. We believe, and defendant agrees, that while such actions may establish the offense of attempted possession of a controlled substance ..., they do not demonstrate he was exercising "control" over the contraband itself for purposes of finding constructive possession. He did not direct the contraband be moved within a room. Nor did he take any other action which exhibits control over the drugs.

Id. at 540, 265 Cal.Rptr. 877.²

In fact, the Armstrong court, id. at 540 n. 2, 265 Cal.Rptr. 877, expressly declined to decide whether someone, like the defendant there, lacking constructive possession, could ever be convicted of purchase for sale: "This opinion is not intended to resolve the viability of a prosecution under the same or similar facts as a purchase for purposes of sale." Because of this express disclaimer, we do not find persuasive the view expressed in United States v. Navarro-Coyazo, 108 Fed.Appx. 490, 491 n. 1 (9th Cir.2004) (mem.), that Armstrong "impl[ied] that a defendant who arranges to buy, and pays for, a controlled substance, but who never constructively or actually possesses the substance, could nonetheless be prosecuted for `purchasing' the drug."³ To the contrary, the Armstrong court specifically avoided deciding whether an agreement to buy, coupled with payment, constitutes "purchase" of a controlled substance, or whether, instead, it is merely an "attempted purchase" of a controlled substance.⁴

Second, Armstrong's reasoning is consistent with our position that purchase of cocaine for the purpose of sale is not obviously different from, or broader than, constructive possession. Because "purchase" involves the transfer of a right to control from the seller to the buyer, a transaction in which the "transfer" is not completed is not a purchase, but only an attempted purchase.

In most cases, the right to control probably transfers close to the moment when an agreement is reached and payment is delivered, even if actual delivery has not occurred....