United States v. Cavazos

• Decision Date: 12 February 2020
• Docket Number: Nos. 19-5141/5186,s. 19-5141/5186
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Pedro Vasquez CAVAZOS, Jr. (19-5141); Christopher Lee Serrano (19-5186), Defendants-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

950 F.3d 329

UNITED STATES of America, Plaintiff-Appellee,

v.Pedro Vasquez CAVAZOS, Jr. (19-5141); Christopher Lee Serrano (19-5186), Defendants-Appellants.

Nos. 19-5141/5186

United States Court of Appeals, Sixth Circuit.

Decided and Filed: February 12, 2020

ON BRIEF: Andrew M. Stephens, Lexington, Kentucky, for Appellant in 19-5141. Renée Paradis, Brooklyn, New York, for Appellant in 19-5186. Charles P. Wisdom, Jr., Kyle M. Melloan, UNITED STATES ATTORNEY’S OFFICE, Lexington, Kentucky, for Appellee.

Before: BATCHELDER, STRANCH, and NALBANDIAN, Circuit Judges.

NALBANDIAN, Circuit Judge.

After pleading guilty to controlled substance offenses, Pedro Cavazos and Christopher Serrano both received sentencing enhancements because of prior controlled substance convictions. They argue on appeal that the district court improperly applied these enhancements. We agree that Serrano does not qualify as a career offender so we VACATE his sentence and REMAND for resentencing. But the court properly applied Cavazos’s enhancement so we AFFIRM his sentence.

I.

In 2017, Cavazos and Serrano transported cocaine from Texas to Kentucky at the request of undercover FBI officers. Based on this conduct, both Cavazos and Serrano pleaded guilty to a single count of conspiracy to distribute 500 grams or more of cocaine, in violation of 21 U.S.C. §§ 841(a)(1), 846. The United States gave notice to both defendants that 21 U.S.C. § 841(b)(1)(B) subjected them to enhanced statutory punishments because of prior felony drug convictions. Cavazos objected, both orally at his re-arraignment and through a written motion prepared by counsel, to basing the enhancement on his 2004 federal conviction for possession with intent to distribute methamphetamine, arguing that it violated the Fifth Amendment’s Double Jeopardy Clause. The district court denied Cavazos’s objection, finding that Cavazos failed to satisfy his burden of establishing the unconstitutionality of his prior conviction. And even if he had, the court held, the dual sovereignty exception would permit federal prosecution, and Cavazos violated 21 U.S.C. § 851(e) ’s five-year limitations period. Serrano orally affirmed his prior conviction. So the district court applied the statutory enhancement to both defendants, resulting in a penalty for each of them of ten years to life. See 21 U.S.C. § 841(b)(1)(B).

Neither defendant objected to his presentence report. So at Cavazos’s sentencing, the district court calculated a guidelines range of eighty-four to 105 months. The statutory minimum enhanced the Guidelines recommendation to 120 months, and the court imposed that sentence. At Serrano’s sentencing, the district court increased Serrano’s offense level to thirty-seven—the mandatory offense level for career offenders guilty of a crime that carries a statutory maximum term of life imprisonment. The court did so because it determined that Serrano’s prior federal conviction for conspiracy to possess with intent to deliver cocaine and prior Texas conviction for possession of a controlled substance with intent to deliver qualified as predicate offenses under USSG § 4B1.2. After a three-level reduction for acceptance of responsibility, the district court calculated Serrano’s guidelines range to be 262 to 327 months and sentenced Serrano to 262 months. This appeal follows.

II.

Cavazos’s confusing appellate brief raises only one argument: that the government obtained the prior conviction used to trigger 21 U.S.C. § 841(b)(1)(B) ’s enhanced statutory penalty in violation of the Double Jeopardy Clause. The district court correctly noted both that the dual-sovereignty doctrine likely renders Cavazos’s prior conviction constitutionally permissible, see Gamble v. United States , ––– U.S. ––––, 139 S. Ct. 1960, 1979–80, 204 L.Ed.2d 322 (2019), and that Cavazos likely failed to satisfy his burden of establishing the unconstitutionality of his prior conviction. But what proves dispositive here is 21 U.S.C. § 851(e). That section prevents any challenge to a prior conviction used to enhance the statutory penalty under § 841(b)(1)(B) when five years have elapsed between the prior conviction and "the information alleging such prior conviction." § 851(e). The government first notified Cavazos that his prior conviction subjected him to an enhanced statutory punishment on June 1, 2018. And the Western District of Texas entered judgment against Cavazos for his prior possession with intent to distribute methamphetamine conviction on December 3, 2004. So almost fourteen years passed between the two. Thus, § 851(e) prevents Cavazos from challenging the constitutionality of his prior conviction regarding his enhanced sentence. Cavazos argues that he cannot waive his constitutional challenge. But that is not true. As we said in United States v. Reed , "Congress could choose to eliminate all collateral attacks on prior convictions with regard to sentence enhancement, save for the limited circumstance in which the prior conviction was obtained in violation of the right to have counsel appointed." 141 F.3d 644, 652 (6th Cir. 1998) (citing Custis v. United States , 511 U.S. 485, 491–97, 114 S.Ct. 1732, 128 L.Ed.2d 517 (1994) ). Because that narrow exception does not apply here, Congress’s restriction on Cavazos’s ability to challenge his prior conviction’s use in enhancing his sentence is valid. So we affirm Cavazos’s sentence.

III.

Serrano appeals only his classification as a career offender. He concedes that his conviction here and his prior federal conviction qualify as "controlled substance offenses" under USSG § 4B1.2. It is his prior Texas conviction for possession of a controlled substance with intent to deliver that he claims is outside that section’s definition of "controlled substance offense." If the district court had not classified Serrano’s Texas conviction as a predicate offense under § 4B1.2, Serrano’s offense level would have been nine levels lower and his Guidelines range would have been less than half of the range the court used to sentence Serrano. "A district court’s failure to properly calculate the advisory Guidelines range is a ‘significant procedural error.’ " United States v. Fuller-Ragland , 931 F.3d 456, 459 (6th Cir. 2019) (quoting Gall v. United States , 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007) ). So Serrano is effectively challenging the procedural reasonableness of his sentence. Because Serrano objects to the calculation of his Guidelines range for the first time on appeal, we review only for plain error. See id. Fed. R. Crim. P. 52(b). In other words, we may reverse only if Serrano can show "(1) error (2) that ‘was obvious or clear,’ (3) that ‘affected defendant’s substantial rights’ and (4) that ‘affected the fairness, integrity, or public reputation of the judicial proceedings.’ " United States v. Vonner , 516 F.3d 382, 386 (6th Cir. 2008) (quoting United States v. Gardiner , 463 F.3d 445, 459 (6th Cir. 2006) ).

The Supreme Court has resolved the third and fourth prongs of that inquiry for us. In Molina-Martinez v. United States , the Court held that improper calculation of the Guidelines range is a "significant procedural error" that usually affects a defendant’s substantial rights. ––– U.S. ––––, 136 S. Ct. 1338, 1345–46, 194 L.Ed.2d 444 (2016). It reserved judgment in cases where there is evidence that the sentencing court would have imposed the sentence it chose regardless of the Guidelines range. Id. at 1346–47. But here, as in Molina-Martinez , "the record is silent as to what the district court might have done had it considered the correct Guidelines range," so "the court’s reliance on an incorrect range ... suffice[s] to show an effect on the defendant’s substantial rights." Id . at 1347.¹ And in Rosales-Mireles v. United States , the Supreme Court held that "[t]he risk of unnecessary deprivation of liberty particularly undermines the fairness, integrity, or public reputation of judicial proceedings in the context of a plain Guidelines error[.]" ––– U.S. ––––, 138 S. Ct. 1897, 1908, 201 L.Ed.2d 376 (2018). So we are left to determine only whether the district court’s classification of Serrano as a career offender was an obvious or clear error.

For offenses that carry a maximum statutory penalty of life—such as 21 U.S.C. § 841(b)(1)(B) when enhanced— USSG § 4B1.1 imposes a mandatory offense level of thirty-seven for adult defendants that commit a controlled substance offense and have "at least two prior felony convictions of either a crime of violence or a controlled substance offense."

The term "controlled substance offense" means an offense under federal or state law, punishable by imprisonment for a term exceeding one year, 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.

USSG § 4B1.2(b). Serrano concedes that his conviction here and his prior federal conviction satisfy this definition. (Serrano Br. at 6.) At issue is whether the district court committed an obvious or clear error in determining that Serrano’s Texas conviction for possession of a controlled substance with intent to deliver, in violation of Texas Health & Safety Code § 481.112, is a "controlled substance offense" under USSG § 4B1.2.

In determining whether a state criminal conviction qualifies as a "controlled substance offense," we must determine whether the elements of the offense require that the defendant engage in the conduct defined in USSG § 4B1.2. Taylor v. United States , 495 U.S. 575, 600, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990) ; United States v. Eason , 919 F.3d 385, 388 (6th Cir. 2019). This categorical inquiry means we look only to the elements of the offense set forth in the statute itself, rather than the particular facts of the defendant’s case. Taylor , 495 U.S. at 602, ...