United States v. Teran-Salas

• Citation: 767 F.3d 453
• Decision Date: 15 September 2014
• Docket Number: No. 13–40884.,13–40884.
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Rogelio TERAN–SALAS, also known as Armando Teran–Salas, Defendant–Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

767 F.3d 453

UNITED STATES of America, Plaintiff–Appellee
v.
Rogelio TERAN–SALAS, also known as Armando Teran–Salas, Defendant–Appellant.

No. 13–40884.

United States Court of Appeals, Fifth Circuit.

Sept. 15, 2014.

767 F.3d 456

James Lee Turner, Assistant U.S. Attorney, Renata Ann Gowie, Assistant U.S. Attorney, Katherine Lisa Haden (argued), Assistant U.S. Attorney, U.S. Attorney's Office, Houston, TX, for Plaintiff–Appellee.

Marjorie A. Meyers, Federal Public Defender, Laura Fletcher Leavitt (argued), 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, SMITH, and CLEMENT, Circuit Judges.

Opinion

EDITH BROWN CLEMENT, Circuit Judge:

Rogelio Teran–Salas appeals the district court's application of a sixteen-level sentence enhancement based on its holding that a prior conviction for possession with intent to deliver a controlled substance under Texas law qualified as a drug trafficking offense and an aggravated felony. For the following reasons, we AFFIRM.

FACTS AND PROCEEDINGS

On April 30, 2013, Teran–Salas was indicted on one count of being an alien found unlawfully present in the United States after deportation in violation of 8 U.S.C. § 1326(a) and (b). He pleaded guilty to this count without a plea agreement. The Probation Office prepared a Presentence Investigation Report (“PSR”), and assessed a base offense level of 8 pursuant to U.S.S.G. § 2L1.2(a). It identified a 2011 Texas conviction for possession with intent to deliver between four and 200 grams of cocaine. Finding that the conviction qualified as a “drug trafficking offense” imposing a sentence of greater than thirteen months, the PSR recommended a 16–level enhancement pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(i). The PSR also determined the applicable statutory maximum term of imprisonment to be 20 years, presumably based on a finding that Teran–Salas's prior Texas conviction qualified as an “aggravated felony” under 8 U.S.C. § 1101(a)(43).

Teran–Salas submitted a supplemental objection to the PSR, arguing that his prior Texas conviction did not qualify as a “drug trafficking offense” under U.S.S.G. § 2L1.2(b)(1)(A) or an “aggravated felony” under 8 U.S.C. § 1101(a)(43). He argued that the 16–level enhancement was inapplicable because the Texas offense of possession with intent to deliver a controlled substance includes the act of “administering,” whereas the guidelines' definition of a drug trafficking offense describes “the possession of a controlled substance ... with intent to manufacture, import, export, distribute, or dispense.” U.S.S.G. § 2L1.2, cmt. n.1(B)(iv); see

767 F.3d 457

Tex. Health & Safety Code §§ 481.002(14), 481.112(a). According to Teran–Salas, the available state court documents did not preclude the possibility that he had been convicted of possession with intent to administer a controlled substance.

At sentencing, Teran–Salas again objected to the 16–level enhancement. Overruling the objection, the court stated that it would “employ a common-sense approach given that this is an enumerated offense and find that the Texas Possession with Intent to Deliver[ ] statute is sufficiently narrow to encompass the generic contemporary meaning of such term.” After subtracting three points based on Teran–Salas's acceptance of responsibility, the court calculated a total offense level of 21 and a criminal history category of VI. It found that his criminal history was overrepresented and therefore departed downward to a criminal history category of IV. The district court considered an imprisonment range of 57 to 71 months and sentenced Teran–Salas to 57 months imprisonment. Teran–Salas appeals.

STANDARD OF REVIEW

“We review the district court's interpretation and application of the sentencing guidelines de novo and its findings of fact for clear error.” United States v. Baker, 742 F.3d 618, 620 (5th Cir.2014). Whether a prior conviction qualifies as a drug trafficking offense under the federal sentencing guidelines or as an aggravated felony under 8 U.S.C. § 1326(b)(2) is a legal question that we review de novo. See United States v. Rodriguez, 711 F.3d 541, 548 (5th Cir.2013) (en banc).

DISCUSSION

On appeal, Teran–Salas repeats his challenges to the district court's determination that his 2011 Texas conviction qualified as either a “drug trafficking offense” under § 2L1.2 of the guidelines or an “aggravated felony” under 8 U.S.C. § 1326(b)(2). He argues that the Texas statute criminalizes a broader set of conduct than that covered by either phrase. Specifically, the Texas statute criminalizes the “administering” of drugs, which is not covered by either of the two relevant sentencing provisions. Teran–Salas reasons that, because the state court documents do not preclude the possibility that his Texas conviction was for possession with the intent to administer a controlled substance in a manner that does not also constitute dispensing or distributing, the government did not meet its burden of proving he was convicted of either a drug trafficking offense or an aggravated felony.¹

The government responds that the federal and state definitions are essentially identical, and that a drug trafficking offense

767 F.3d 458

under the federal guidelines encompasses possession with the intent to administer in the manner Teran–Salas hypothesizes. We hold that, although Texas's statutory framework leaves open the theoretical possibility that a defendant can be convicted under Texas Health & Safety Code § 481.112(a) for conduct that would not qualify as a federal drug trafficking offense, Teran–Salas fails to establish a realistic probability that Texas would apply its statute in such a manner.

I. Categorical and Modified Categorical Approaches

When determining whether a prior conviction qualifies as a level-enhancing offense under the guidelines, courts employ the categorical approach set forth in Taylor v. United States, 495 U.S. 575, 602, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). “[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. Carrasco–Tercero, 745 F.3d 192, 195 (5th Cir.2014) (alteration in original) (internal quotation marks omitted). We then compare the elements of the statute forming the basis of the defendant's conviction with the elements of the ‘generic’ crime—i.e., the offense as commonly understood. Descamps v. United States, ––– U.S. ––––, 133 S.Ct. 2276, 2281, 186 L.Ed.2d 438 (2013). “[T]he offenses must be viewed in the abstract, to see whether the state statute shares the nature of the federal offense that serves as a point of comparison.” Moncrieffe v. Holder, ––– U.S. ––––, 133 S.Ct. 1678, 1684, 185 L.Ed.2d 727 (2013). State and federal offenses are only categorical matches when a conviction under the state offense “necessarily involved ... facts equating to [the] generic [federal offense].” Id. (alterations in original) (quoting Shepard v. United States, 544 U.S. 13, 24, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005) (plurality opinion)) (internal quotation marks omitted).

Although the categorical approach resolves most enhancement issues, courts employ a “modified categorical approach” when the prior conviction is for violating a “divisible statute,” which is one that sets out one or more offense elements in the alternative. Descamps, 133 S.Ct. at 2281. If one of the alternative elements is a categorical match for an element in the generic offense, but another alternative element is not, courts may look at a limited class of documents to determine which alternative element formed the basis of a defendant's prior conviction. Id. Courts may consider only the “charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented.” Shepard, 544 U.S. at 16, 125 S.Ct. 1254. After reviewing these documents, the court can then compare the actual offense elements for which the defendant was convicted with the elements of the generic crime. Descamps, 133 S.Ct. at 2281.

Pursuant to the Texas statute under which...