United States v. Gomez-Alvarez

• Citation: 781 F.3d 787
• Decision Date: 31 March 2015
• Docket Number: No. 14–40059.,14–40059.
• Parties: UNITED STATES of America, Plaintiff–Appellee v. Elmer GOMEZ–ALVAREZ, Defendant–Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

781 F.3d 787

UNITED STATES of America, Plaintiff–Appellee

v.Elmer GOMEZ–ALVAREZ, Defendant–Appellant.

No. 14–40059.

United States Court of Appeals, Fifth Circuit.

March 31, 2015.

John Richard Berry, Assistant U.S. Attorney, Renata Ann Gowie, Assistant U.S. Attorney, U.S. Attorney's Office, Houston, TX, for Plaintiff–Appellee.

Marjorie A. Meyers, Federal Public Defender, Michael Lance Herman, Assistant Federal Public Defender, Laura Fletcher Leavitt, Assistant Federal Public Defender Philip G. Gallagher, Assistant Federal Public Defender, Federal Public Defender's Office, Houston, TX, for Defendant–Appellant.

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

Before HIGGINBOTHAM, CLEMENT, and HIGGINSON, Circuit Judges.

Opinion

PATRICK E. HIGGINBOTHAM, Circuit Judge.

Elmer Gomez–Alvarez pled guilty to illegal reentry in violation of 8 U.S.C. § 1326. He appeals from his sentence to challenge the district court's imposition of a 16–level sentencing enhancement based on a prior conviction for a drug trafficking offense. We affirm.

I.

Gomez–Alvarez pled guilty without a written plea agreement to being unlawfully present in the United States after previously having been deported. His pre-sentence report (“PSR”), which relied on the 2013 version of the Sentencing Guidelines Manual, recommended a 16–level sentencing enhancement for a prior “drug trafficking offense” conviction pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(i). The PSR based its recommendation on a prior conviction for possession for sale of a controlled substance in violation of California Health and Safety Code § 11351. The PSR listed “Jorge Ortiz” as one of several aliases used by Gomez–Alvarez and indicated that Gomez–Alvarez had been convicted of the offense in California “using the name Jorge Ortiz.”¹ Attached to the PSR was a California felony complaint in case number BA306677, dated July 31, 2006 (the “Complaint”). Count one of the Complaint charged Jorge Ortiz with “possess[ion] for sale and purchase for sale [of] a controlled substance, to wit, heroin.”² Also attached to the PSR was an abstract of judgment in case number BA306677, dated August 16, 2006 (the “Abstract”). The Abstract indicated that, on August 7, 2006, Jorge Ortiz pled guilty to “possession for sale of [a] controlled substance” under section 11351, but it did not specify the substance.³ Application of the sentencing enhancement based on the California offense resulted in a total offense level of 22 and a criminal history category of V, which produced a guideline range for imprisonment of 77 to 96 months.

Gomez–Alvarez raised several written objections to the PSR. Relevant for our purposes, he objected to the 16–level enhancement on grounds that the documents relied upon by the government failed to establish the fact of a qualifying predicate conviction. He argued that the language of the California statute is overbroad—that is, it “encompasses conduct that falls outside the contemporary generic meaning of a drug trafficking offense”—and that, although “the charging instrument [the Complaint] allege[d] ... possession and purchase of heroin,” the Abstract did not specify a controlled substance.⁴ Therefore, he asserted, the government failed to establish “that, in fact, there was a plea to possession and purchase of heroin, or that the controlled substance involved is actually a controlled substance under federal law.”⁵ Finally, Gomez–Alvarez raised the following one-sentence written objection: “Further, it has not been established with credible documentation that the person purportedly convicted was, in fact, Mr. Gomez–Alvarez.”⁶

Gomez–Alvarez's probation officer responded to the written objections in an addendum to the PSR. The probation officer, like counsel for Gomez–Alvarez, referred to the Complaint as the “charging instrument.”⁷ The addendum to the PSR did not address Gomez–Alvarez's objection regarding whether “Jorge Ortiz” was actually Gomez–Alvarez. During Gomez–Alvarez's sentencing hearing, counsel for Gomez–Alvarez did not orally raise an objection regarding whether “Jorge Ortiz” and Gomez–Alvarez were one and the same.

The district court rejected Gomez–Alvarez's objections. Citing United States v. Cruz–Campos,⁸ it reasoned that, absent anything in the record affirmatively casting doubt on or creating ambiguity about the Complaint, it could conclude that the language of the Complaint—as the charging instrument—governed the prior conviction and established as a factual matter that the conviction was for possession of heroin. The district court adopted the facts and findings contained in the PSR, but it did not explicitly address whether Jorge Ortiz was, in fact, Gomez–Alvarez.

Gomez–Alvarez then argued in favor of a below-guideline-range sentence on grounds that his criminal history was over-represented. The district court agreed and concluded that criminal history category IV more accurately represented Gomez–Alvarez's criminal history. As a result, Gomez–Alvarez's guideline range for imprisonment was reduced to 57 to 71 months.⁹ The district court sentenced Gomez–Alvarez to 57 months of imprisonment and did not impose a term of supervised release. Gomez–Alvarez timely appealed.

II.

Gomez–Alvarez raises two arguments on appeal: first, that the district court misapplied section 2L1.2 because section 11351 is not categorically a “drug trafficking offense” and the Complaint and Abstract do not establish as a factual matter that the conviction was for a qualifying offense; and second, that the government failed to establish at sentencing that the person convicted under section 11351 was, in fact, Gomez–Alvarez.

A. Standard of Review

Where a defendant preserves error by objecting at sentencing, we review the sentencing court's factual findings for clear error and its interpretation or application of the Sentencing Guidelines de novo.¹⁰ “There is no clear error if the sentencing court's finding is plausible in light of the record as a whole.”¹¹

Gomez–Alvarez provided written objections at sentencing regarding each issue designated on appeal. The government concedes that Gomez–Alvarez preserved his first argument by lodging an oral objection before the sentencing judge. The government contends, however, that Gomez–Alvarez's one-sentence written objection regarding his second argument failed to adequately direct the district court's attention to that issue. The government urges review for plain error rather than clear error. We have held, however, that “[o]nce a party raises an objection in writing,” even “if he subsequently fails to lodge an oral on-the-record objection the error is nevertheless preserved for appeal.”¹² As Gomez–Alvarez's written objection was “clear enough to provide the district court with opportunity to rule on it,”¹³ we review for clear error.

B. Analysis

Sentencing Guidelines section 2L1.2(b)(1)(A)(i) provides for a 16–level enhancement to a defendant's base offense level if he was previously deported after a conviction for a felony “drug trafficking offense” for which the sentence imposed exceeded 13 months.¹⁴ The application note to section 2L1.2 defines the term “drug trafficking offense” to mean:

... an offense under federal, state, or local law that prohibits the manufacture, import, export, distribution, or dispensing of, or offer to sell 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.¹⁵

“The [g]overnment bears the burden of proving by a preponderance of the relevant and reliable evidence that the facts support a sentencing enhancement.”¹⁶ We consider in turn each issue Gomez–Alvarez designates on appeal.

1. Whether the California Conviction Qualifies as a “Drug Trafficking Offense ”

Under the categorical approach set forth in Taylor v. United States, a sentencing court looks to the elements of a prior offense, rather than the facts underlying the conviction, when classifying a prior offense for sentence enhancement purposes.¹⁷ If the statutory definition of the prior offense criminalizes some conduct that would not constitute a qualifying offense for enhancement, then “the statute is not a categorical fit.”¹⁸

The Supreme Court has developed a “modified” categorical approach for those cases where “a divisible statute, listing potential offense elements in the alternative, renders opaque which element played a part in the defendant's conviction,” precluding a categorical determination of whether the offense qualifies to support an enhancement.¹⁹ Under the modified approach, a later sentencing court determining the character of a prior offense to which a defendant pled guilty is permitted to look beyond the fact of conviction and the statutory definition of the prior offense.²⁰ The Supreme Court held in Shepard that such inquiry “is generally limited to examining the statutory definition, charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented.”²¹

Our analysis proceeds in two parts: first, whether a conviction under section 11351 categorically qualifies as a predicate offense under section 2L1.2 ; and if not, second, whether, under the modified categorical approach, the government has established by introduction of Shepard -approved documents that the instant conviction qualifies.

a.

Section 11351, which criminalizes “[p]ossession or purchase for sale of designated controlled substances,” is a divisible statute-one that sets out one or more elements in the alternative.²² Gomez–Alvarez argues that although some of the alternative elements under section 11351 fall within the definition of a “drug trafficking offense” under section 2L1.2, other alternative elements do not, precluding categorical qualification. We agree.

In United States v. Leal–Vega,²³ the Ninth Circuit considered a similar challenge to a...