United States v. Martinez-Lugo

• Decision Date: 27 March 2015
• Docket Number: No. 13–40924.,13–40924.
• Citation: 782 F.3d 198
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Juan Francisco MARTINEZ–LUGO, Defendant–Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

782 F.3d 198

UNITED STATES of America, Plaintiff–Appellee

v.Juan Francisco MARTINEZ–LUGO, Defendant–Appellant.

No. 13–40924.

United States Court of Appeals, Fifth Circuit.

March 27, 2015.

Paula Camille Offenhauser, Assistant U.S. Attorney, Renata Ann Gowie, Assistant U.S. Attorney, Katherine Lisa Haden, Assistant U.S. Attorney, U.S. Attorney's Office, Houston, TX, for Plaintiff–Appellee.

Marjorie A. Meyers, Federal Public Defender, Philip G. Gallagher, Assistant Federal Public Defender, Michael Lance Herman, 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 DAVIS, DENNIS, and COSTA, Circuit Judges.

Opinion

PER CURIAM:

We sua sponte withdraw the prior panel opinion, United States v. Martinez–Lugo, 773 F.3d 678 (5th Cir.2014), and substitute the following:

Defendant–Appellant Juan Francisco Martinez–Lugo appeals from the district court's application of a 16–level sentence enhancement pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(i) for his having been removed following a conviction for a drug trafficking offense for which the sentence was greater than 13 months based upon Martinez's 2002 Georgia conviction for possession with intent to distribute marijuana. For the reasons set out below, we AFFIRM the sentence.

FACTS AND PROCEEDINGS

Martinez–Lugo was charged in an indictment with being unlawfully present in the United States following removal. He pleaded guilty to the indictment without the benefit of a written plea agreement. In the Presentence Report (“PSR”), the Probation Office determined that Martinez–Lugo's base offense level was eight. It applied a 16–level enhancement pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(i) for having been removed following a conviction for a drug trafficking offense for which the sentence was greater than 13 months. The recommendation was based on Martinez–Lugo's 2002 Georgia conviction for possession with intent to distribute marijuana, for which Martinez–Lugo was sentenced to five years of imprisonment with two of those years probated.

Applying a two-level reduction for acceptance of responsibility, the Probation Office determined that Martinez–Lugo's total offense level was 22. Based upon Martinez–Lugo's total offense level of 22 and criminal history category of IV, it calculated that his guidelines sentence range was 63–78 months of imprisonment and that his guidelines sentence range would be 57–71 months of imprisonment if he were granted an additional one-level reduction for acceptance of responsibility. As an attachment to the PSR, the Probation Office included the accusation, guilty plea documentation, and final judgment from Martinez–Lugo's 2002 conviction, and those documents showed that Martinez–Lugo had been convicted under Ga.Code Ann. § 16–13–30(j)(1) (2002).

When the case was first called for sentencing, Martinez–Lugo raised an objection to the 16–level enhancement on the ground that his prior Georgia conviction did not qualify as a “drug trafficking offense” under the Supreme Court's reasoning in Moncrieffe v. Holder, ––– U.S. ––––, 133 S.Ct. 1678, 185 L.Ed.2d 727 (2013), which considered the same Georgia statute. The district court granted Martinez–Lugo a continuance, and he subsequently filed a written objection to the PSR on that basis.

The district court overruled Martinez–Lugo's objection. The Government moved for the additional one-level reduction for acceptance of responsibility, and the district court granted the motion. The district court additionally ruled that Martinez–Lugo's criminal history category was “artificially exaggerated” and that a criminal history category of III was more accurate. Based upon a total offense level of 21 and criminal history category of III, it determined that Martinez–Lugo's guidelines sentence range was 46–57 months of imprisonment. It sentenced Martinez–Lugo to 46 months of imprisonment without a term of supervised release. Martinez–Lugo filed a timely notice of appeal on the basis that the district court misapplied the 16–level sentence enhancement for a “drug trafficking offense” under § 2L1.2(b)(1)(A)(i).

STANDARD OF REVIEW

Martinez–Lugo is not the first appellant to argue that, following Moncrieffe , a conviction “for giving away or offering to give away [i.e., for no remuneration] a controlled substance” does not constitute “a drug trafficking offense under ... § 2L1.2(b)(1)(A)(i).”¹ He is, however, the first to have preserved the error by raising the objection at the district court, so we are not limited to plain error review, which must deny relief where, as here, “the issue is subject to reasonable debate and the error is not readily apparent.”²

Because Martinez–Lugo preserved his objection to the sentence enhancement, “[w]e review the district court's interpretation and application of the sentencing guidelines de novo and its findings of fact for clear error.”³ “We review a district court's conclusion that a prior state conviction constitutes a drug trafficking offense de novo. ”⁴

DISCUSSION

On appeal, Martinez–Lugo renews his argument that his prior conviction under Ga.Code Ann. § 16–13–30(j)(1) (2002) does not constitute a “drug trafficking offense” for purposes of applying the sentence enhancement of § 2L1.2(b)(1)(A)(i). Martinez–Lugo points to the Supreme Court's emphasis in Moncrieffe that “trafficking” generally requires remuneration,⁵ and he argues that the Georgia statute is overbroad because it also criminalizes possession with intent to distribute for no remuneration.⁶ On the other hand, the Application Note to § 2L1.2(b)(1)(A)(i) defines as a “drug trafficking offense” precisely the type of conviction at issue here.

Section 2L1.2(b)(1)(A)(i) provides:

(b) Specific Offense Characteristic

(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; ... increase by 16 levels if the conviction receives criminal history points under Chapter Four....⁷

Application Note to § 2L1.2(b)(1)(A)(i) provides:

“Drug trafficking offense” means 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.⁸

The Georgia statute under which Martinez–Lugo was convicted provides:

(j) (1) It is unlawful for any person to possess, have under his control, manufacture, deliver, distribute, dispense, administer, purchase, sell, or possess with intent to distribute marijuana.⁹

The fact that Martinez–Lugo's Georgia conviction has the same label—“possession with intent to distribute”—as an enumerated offense listed in the Guidelines definition of “drug trafficking offense” does not automatically warrant application of the enhancement.¹⁰ Instead, we assume that an enumerated offense refers to the “generic, contemporary meaning” of that offense.¹¹ The familiar categorical approach then requires us to ensure that the elements of that generic enumerated offense are congruent with the elements of the defendant's prior offense.¹² In determining the generic, contemporary meaning of an enumerated offense, we consult sources such as state and federal statutes, the Model Penal Code, respected treatises, and dictionaries.¹³

The proper standard of comparison in this categorical inquiry is the elements of the enumerated offense of “possession with intent to distribute,” not the general meaning of the Guidelines term “drug trafficking.”¹⁴ That is because the Guidelines definition reflects a determination that certain enumerated offenses—such as possession with intent to distribute—qualify for the “drug trafficking offense” enhancement so long as the offenses are consistent with the generic, contemporary meaning of the enumerated offense that the Commission was contemplating when it adopted the definition.¹⁵

Martinez–Lugo never argues that the elements of Georgia's possession with intent to distribute offense differ from the elements of the generic, contemporary “possession with intent to distribute” offense.¹⁶ Instead, he argues that Moncrieffe v. Holder controls because of its general statement, in the context of discussing the “aggravated felony” provision of the Immigration and Nationality Act (INA), that “[s]haring a small amount of marijuana for no remuneration, let alone possession with intent to do so, does not fit easily into the everyday understand of trafficking.”¹⁷ Before responding more fully to this argument, we note that on the required categorical comparison between the elements of Georgia's possession with intent to distribute and those of the generic offense, Moncrieffe seems to support the district court's application of the enhancement. In comparing the Georgia offense with the federal possession with intent to distribute statute,¹⁸ Moncrieffe recognized that the elements are the same.¹⁹ Thus, Georgia's statute “necessarily proscribe[s] conduct that is an offense under the [Controlled Substances Act].”²⁰

If it recognized that Georgia's possession with intent to distribute statute has the same elements as its federal counterpart, why did Moncrieffe nonetheless find that a conviction under the Georgia statute did not require mandatory deportation? The answer lies in Moncrieffe 's focus on the “aggravated felony” provision of the INA. That statute looks to whether the state offense would constitute a felony under the federal drug laws.²¹ The Court held that the Georgia conviction did not fulfill that felony requirement because “distributing a small amount of marihuana for no remuneration” is a misdemeanor under federal law.²² Further demonstrating this limited context in Monc...