United States v. Rodriguez-Negrete
| Citation | 772 F.3d 221 |
| Decision Date | 03 November 2014 |
| Docket Number | No. 13–51117.,13–51117. |
| Parties | UNITED STATES of America, Plaintiff–Appellee v. Rodrigo RODRIGUEZ–NEGRETE, Defendant–Appellant. |
| Court | United States Courts of Appeals. United States Court of Appeals (5th Circuit) |
Joseph H. Gay, Jr., Mara Asya Blatt, Esq., Assistant U.S. Attorneys, U.S. Attorney's Office, San Antonio, TX, for Plaintiff–Appellee.
Judy Fulmer Madewell, Assistant Federal Public Defender, Maureen Scott Franco, Federal Public Defender, Federal Public Defender's Office, San Antonio, TX, for Defendant–Appellant.
Appeal from the United States District Court for the Western District of Texas.
Before STEWART, Chief Judge, and JONES and HIGGINSON, Circuit Judges.
Rodrigo Rodriguez–Negrete (“Rodriguez”) appeals his sentence for illegal reentry, contending that the district court erred in imposing a sentence enhancement based on its classification of Rodriguez's prior state crime as a drug trafficking offense. We find that the documents we are permitted to consult establish that Rodriguez necessarily was convicted of a drug trafficking offense, as defined by the federal Sentencing Guidelines.
In September 2012, Rodriguez was removed from the United States. In July 2013, he was indicted for illegally reentering the United States after removal in violation of 8 U.S.C. § 1326. He pleaded guilty to that offense. In calculating Rodriguez's Sentencing Guidelines range, the probation officer noted that the Guidelines provide for a sentence enhancement if the defendant previously committed a “drug trafficking offense.” See U.S. Sentencing Guidelines Manual (“U.S.S.G.”) § 2L1.2(b)(1)(B) (2013). The officer applied that enhancement, recommending that Rodriguez's offense level be increased by twelve levels, based on Rodriguez's 2010 conviction in South Carolina.
Rodriguez's counsel submitted a written response to the presentence report. Citing caselaw, he objected to the sentence enhancement because the South Carolina statute under which Rodriguez pleaded guilty criminalizes the “mere purchase or possession of a controlled substance.” Defense counsel argued that neither the indictment nor the judgment indicated whether Rodriguez pleaded guilty to a drug trafficking offense within the meaning of the Sentencing Guidelines. He argued that because the “least culpable act” that violates the statute of conviction does not constitute a drug trafficking offense, Rodriguez was ineligible for the sentence enhancement.
At the sentencing hearing, defense counsel repeated his objection to the classification of Rodriguez's state crime as a drug trafficking offense. Citing the sentencing sheet's reference to “PWID/Dist. of Cocaine/LSD/other Narcotic drugs,” counsel stated, “you can't read that one sentence under Shepard to be the equivalent of a specific factual finding by the judge that that's what he did any more than you can read it to be a notation of the clerk who included the first one or two lines of boilerplate from the statute.”2 The sentencing judge overruled the objection and relied on the twelve-level enhancement to apply a Guidelines range of 30 to 37 months in prison. The judge sentenced Rodriguez to a prison term of 30 months. Defense counsel objected to that sentence “in order to preserve the issue.”
We review the district court's interpretation and application of the Sentencing Guidelines de novo. United States v. Medina–Torres, 703 F.3d 770, 773 (5th Cir.2012). To determine whether a prior conviction qualifies as an offense under the Sentencing Guidelines, we begin with the categorical approach described in Taylor v. United States, 495 U.S. 575, 602, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). See United States v. Stoker, 706 F.3d 643, 648 (5th Cir.2013). Under that approach, “[w]e examine the elements of the offense, rather than the facts underlying the conviction or the defendant's actual conduct, to determine whether the enhancement applies.” United States v. Teran–Salas, 767 F.3d 453, 458 (5th Cir.2014) (internal quotation marks and citation omitted). “[A] state offense is a categorical match with a generic federal offense only if a conviction of the state offense necessarily involved facts equating to the generic federal offense.” Moncrieffe v. Holder, ––– U.S. ––––, 133 S.Ct. 1678, 1684, 185 L.Ed.2d 727 (2013) (internal quotation marks, alteration, and citation omitted). In determining whether a state statute sweeps more broadly than an offense defined under federal law, courts should not “conceive of every imaginable means by which a statute might possibly be violated.” United States v. Gore, 636 F.3d 728, 733 (5th Cir.2011). Rather, “to find that a state statute creates a crime outside the generic definition of a listed crime in a federal statute requires ... a realistic probability, not a theoretical possibility, that the State would apply its statute to conduct that falls outside the generic definition of a crime.” Gonzales v. Duenas–Alvarez, 549 U.S. 183, 193, 127 S.Ct. 815, 166 L.Ed.2d 683 (2007). “To show that realistic probability, an offender ... must at least point to his own case or other cases in which the state courts in fact did apply the statute in the special (nongeneric) manner for which he argues.” Id.
If the state statute sweeps more broadly than the federal definition of the offense, and the state statute is “divisible” in that it sets out offense elements in the alternative, then we apply the “modified categorical approach” to determine which offense element formed the basis of the defendant's state conviction. See Descamps v. United States, –––U.S. ––––, 133 S.Ct. 2276, 2281, 186 L.Ed.2d 438 (2013) ; Perez–Gonzalez v. Holder, 667 F.3d 622, 625 (5th Cir.2012). Under the modified categorical approach, we may determine the defendant's offense by consulting a limited class of documents in addition to the statute of conviction. We may consider the “ ‘charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented.’ ” Medina–Torres, 703 F.3d at 774 (quoting Shepard v. United States, 544 U.S. 13, 16, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005) ). The Government bears the burden of showing that, based on these documents, the offense of conviction necessarily constituted a qualifying offense under the Sentencing Guidelines. See United States v. Castaneda, 740 F.3d 169, 174 (5th Cir.2013). Where these documents do not identify the offense of conviction, we must consider whether the “least culpable” means of violating the statute of conviction qualifies as an offense under the Sentencing Guidelines. United States v. Elizondo–Hernandez, 755 F.3d 779, 781 (5th Cir.2014) (internal quotation marks and citation omitted). A sentence enhancement is properly applied only if the “least culpable” means of violating the state statute makes the defendant eligible for the enhancement. See United States v. Reyes–Mendoza, 665 F.3d 165, 167 (5th Cir.2011).
To determine whether Rodriguez was convicted of a qualifying drug trafficking offense in South Carolina, we begin by comparing the state statute violated to the definition of a drug trafficking offense under the federal Sentencing Guidelines. The statutory provision under which Rodriguez pleaded guilty, as entered on his sentencing sheet, is section 44–53–370(b)(1), which, in fact, is the penalty provision for a person who violates section 44–53–370(a) with respect to “a controlled substance classified in Schedule I(b) and (c) which is a narcotic drug or lysergic acid diethylamide (LSD) and in Schedule II which is a narcotic drug.” Section 44–53–370(a) provides generally:
[I]t shall be unlawful for any person: (1) to manufacture, distribute, dispense, deliver, purchase, aid, abet, attempt, or conspire to manufacture, distribute, dispense, deliver, or purchase, or possess with the intent to manufacture, distribute, dispense, deliver, or purchase a controlled substance or a controlled substance analogue; (2) to create, distribute, dispense, deliver, or purchase, or aid, abet, attempt, or conspire to create, distribute, dispense, deliver, or purchase, or possess with intent to distribute, dispense, deliver, or purchase a counterfeit substance.
Under the Sentencing Guidelines, a “drug trafficking offense” is, in relevant part, “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 the...
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