United States Court of Appeals Fifth Circuit F I L E D REVISED JULY 15, 2005 IN THE UNITED STATES COURT OF APPEALS May 19, 2005
FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk ____________________
No. 03-41750 ____________________
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
OSCAR GARZA-LOPEZ
Defendant - Appellant _________________________________________________________________
Appeal from the United States District Court for the Southern District of Texas, McAllen _________________________________________________________________
Before KING, Chief Judge, and GARZA and BENAVIDES, Circuit Judges.
KING, Chief Judge:
Defendant-Appellant Oscar Garza-Lopez pled guilty to being
knowingly and unlawfully present in the United States following
deportation, in violation of 8 U.S.C. § 1326(a) and (b). At
sentencing, the district court increased his offense level by
sixteen points pursuant to UNITED STATES SENTENCING GUIDELINES
(“U.S.S.G.”) § 2L1.2(b)(1)(A)(i) (2003), which authorizes an
enhancement if the defendant previously was convicted of a “drug
trafficking offense” for which the sentence exceeded thirteen
months. Garza-Lopez now appeals his sentence of seventy-seven
months, arguing: (1) the “felony” and “aggravated felony” provisions of 8 U.S.C. § 1326(b) are unconstitutional; (2) the
district court erred by enhancing his sentence under
§ 2L1.2(b)(1)(A)(i); and (3) the district court erred by
sentencing him under the mandatory guidelines regime held to be
unconstitutional in United States v. Booker, 125 S. Ct. 738
(2005). For the following reasons, we VACATE and REMAND Garza-
Lopez’s sentence.
I. Factual and Procedural Background
On February 19, 2003, Garza-Lopez was deported from the
United States to Mexico. On July 27, 2001, prior to his
deportation, he was convicted in the Superior Court of
California, Kern County, Bakersfield, of transporting/selling a
controlled substance, namely methamphetamine, under CAL. HEALTH &
SAFETY CODE § 11379(a). Garza-Lopez was sentenced to three years
imprisonment for this offense.
On July 15, 2003, Border Patrol agents found Garza-Lopez at
the Hidalgo County Jail in Edinburg, Texas. Because he had not
previously obtained permission to re-enter the United States
after being deported in February of 2003, he was indicted with
being illegally present in the United States. He pled guilty to
this charge.
On December 11, 2003, the district court sentenced Garza-
Lopez. In the Presentence Report (the “PSR”), which applied the
2003 edition of the Guidelines Manual, the probation officer
2 scored Garza-Lopez at a base offense level of eight. He then
increased his offense level by sixteen points pursuant to
U.S.S.G. § 2L1.2(b)(1)(A)(i), which authorizes a sixteen-point
enhancement if the defendant has been convicted of a prior “drug
trafficking offense” for which the sentence imposed exceeded
thirteen months. The PSR stated that the basis for this
enhancement was Garza-Lopez’s 2001 conviction under CAL. HEALTH &
SAFETY CODE § 11379(a).
At sentencing, the district court granted a two-level
reduction in Garza-Lopez’s offense level for timely acceptance of
responsibility. The government requested an upward departure for
under-representation of Garza-Lopez’s criminal history and an
additional one-level reduction for timely acceptance of
responsibility. Garza-Lopez objected to the upward departure and
moved for a downward departure. The district court granted the
request for an additional one-level downward departure for
acceptance of responsibility, and it denied the government’s
request for an upward departure. The district court then adopted
the revised PSR (including the sixteen-level enhancement for
Garza-Lopez’s “drug trafficking” conviction under § 11379(a)),
and it concluded that Garza-Lopez’s criminal history category was
VI. Accordingly, the punishment range under the Sentencing
Guidelines was seventy-seven to ninety-six months. The district
court sentenced Garza-Lopez to seventy-seven months, the low end
of the applicable range, to be followed by a two-year term of
3 supervised release. The court also imposed a $100 special
assessment.
On December 17, 2003, Garza-Lopez filed a timely notice of
appeal of his sentence. In his original appellate brief, he
raised only one issue: whether the “felony” and “aggravated
felony” provisions of 8 U.S.C. § 1326(b) are unconstitutional.
The government responded by moving for summary affirmance. On
June 16, 2004, before this court ruled on the motion for summary
affirmance, Garza-Lopez moved for leave to file a supplemental
brief. The court granted Garza-Lopez’s motion. As a result,
Garza-Lopez filed a supplemental brief in which he argued that
the district court erred when it imposed the sixteen-level
enhancement under § 2L1.2(b)(1)(A)(i) on the basis of his prior
conviction under § 11379(a). Garza-Lopez also filed an unopposed
motion to supplement the record, requesting permission to include
in the record the state court charging instrument for his
conviction under § 11379(a), which this court granted. Finally,
on February 16, 2005, Garza-Lopez, with the permission of this
court, filed a supplemental letter brief addressing the effect of
Booker on his appeal.
II. ANALYSIS
A. The Sixteen-Level Enhancement
Garza-Lopez argues that the district court committed plain
error by enhancing his sentence by sixteen levels on the basis of
4 his 2001 conviction under § 11379(a). According to Garza-Lopez,
§ 11379(a) criminalizes a variety of conduct, including acts that
cannot form the basis for a sentencing enhancement under §
2L1.2(b)(1)(A)(i).
Garza-Lopez states that under § 2L1.2(b)(1)(A)(i) of the
Sentencing Guidelines, a defendant’s offense level is increased
by sixteen levels if he has previously been convicted of a “drug
trafficking offense for which the sentence imposed exceeded 13
months.” The Sentencing Guidelines define a “drug trafficking
offense” as:
[A]n offense under federal, state, or local law 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.
U.S.S.G. § 2L1.2, Application Note 1(B)(iv). As Garza-Lopez
notes, in the present case, the PSR stated that Garza-Lopez had
been convicted of such a “drug trafficking offense,” namely the
offense of “[t]ransport/sell methamphetamine” under § 11379(a).
Garza-Lopez argues that the district court erred because it
relied on the PSR and because the language of § 11379(a) was too
broad to establish that he had committed a “drug trafficking
offense.”1 In support of this claim, Garza-Lopez cites United
1 Garza-Lopez also argues that the language of the California charging document simply tracks the language of § 11379(a). Thus, he contends that even if the district court had examined the charging document, it could not have concluded that he committed a “drug trafficking offense.” On June 17, 2004, Garza-
5 States v. Navidad-Marcos, 367 F.3d 903 (9th Cir. 2004), in which
the Ninth Circuit held, in a case with similar facts, that
Ҥ 11379(a) was too broad to establish a predicate offense
justifying the [sixteen]-level enhancement.” Id. Garza-Lopez
argues that this court should follow the logic of the Ninth
Circuit’s decision in Navidad-Marcos and hold that the district
court erred in enhancing his offense level by sixteen levels
because § 11379(a) is too broad to have permitted an enhancement
under U.S.S.G. § 2L1.2(b)(1)(A). He further argues that the
district court’s error affected his substantial rights because,
absent the sixteen-level enhancement, he would have been facing
an imprisonment range of only thirty-three to forty-one months.
Because Garza-Lopez did not object below to the district
court’s imposition of the sixteen-level increase, this court
reviews the district court’s imposition of the enhancement for
plain error. See United States v. Villegas, No. 03-21220, 2005
WL 627963, at *2 (5th Cir. Mar. 17, 2005). This court finds
plain error when: (1) there was an error; (2) the error was clear
and obvious; and (3) the error affected the defendant’s
substantial rights. Id.; United States v. Olano, 507 U.S. 725,
732-37 (1993). When these three conditions are all met, this
court may exercise its discretion to correct the error only if
Lopez filed a motion to supplement the record with a copy of the California charging document. The government did not oppose this motion, which this court granted. Accordingly, the charging document is now part of the record.
6 the error “seriously affects the fairness, integrity, or public
reputation of judicial proceedings.” United States v. Mares, No.
03-21035, 2005 WL 503715, at *8 (5th Cir. Mar. 4, 2005) (quoting
United States v. Cotton, 535 U.S. 625, 631 (2002)).
In reviewing Garza-Lopez’s claim of plain error, we begin by
determining whether the district court committed an error and
whether that error was plain. Villegas, 2005 WL 627963, at *2-5.
In resolving Garza-Lopez’s claim that the district court erred by
misapplying § 2L1.2(b)(1)(A), we review the district court’s
interpretation and application of the Guidelines de novo. Id.
Under the categorical approach set forth in United States v.
Taylor, 495 U.S. 575, 602 (1990), a district court looks to the
elements of a prior offense, rather than to the facts underlying
the conviction, when classifying a prior offense for sentence
enhancement purposes. See also United States v. Gracia-Cantu,
302 F.3d 308, 309 (5th Cir. 2002). In a “narrow range of cases,”
however, a district court may look beyond the elements of the
offense when making such a determination. Taylor, 495 U.S. at
602. In such cases, courts are not free to consider any facts,
but may consider the statutory definition of the offense, the
charging paper, and the jury instructions. See United States v.
Allen, 282 F.3d 339, 343 (5th Cir. 2002) (citing Taylor, 495 U.S.
at 601). This court has held that the determination of whether a
“drug trafficking offense” was committed falls into the narrow
range of cases where the court may consider information other
7 than the statutory definition of the offense. United States v.
Rodriguez-Duberney, 326 F.3d 613, 616-17 (5th Cir. 2003) (“We
therefore decline to extend the Gracia-Cantu categorical approach
to § 2L1.2(b)(1)(A)(i).”). Thus, courts making such a
determination may consider the statutory definition of the
predicate offense, the charging paper, and the jury instructions.
See id. at 617; Allen, 282 F.3d at 343.
In the present case, the district court did not have the
state court charging document or the jury instructions before it
when it sentenced Garza-Lopez. All that it had before it was the
PSR prepared by the probation officer. In the PSR, the probation
officer categorized Garza-Lopez’s 2001 conviction as
“Transport/sell methamphetamine; Superior Court of Kern County,
Bakersfield, California; Cause No. BF095698A.” The probation
officer then provided the following narrative of the facts
underlying this offense:
According to the Kern County, California, Sheriff’s Department, on July 12, 2001, deputies received confidential information indicating that the defendant was in the process of transporting approximately two ounces of methamphetamine from a motel room he was staying at to a local market. Surveillance was established . . . . The deputies followed the defendant to a local market, where the defendant parked the vehicle. After the deputies made contact with the defendant, a search of the vehicle was conducted, which led to the seizure of 1.97 ounces of methamphetamine wrapped in a washcloth on the floorboard. Consequently, the defendant was placed under arrest. The defendant later admitted that he was going to sell the methamphetamine to a female, whom he refused to identify. A further search of the defendant’s motel room led to the seizure of approximately 62.3 grams of
8 methamphetamine. The defendant also was charged in Count 2 with possession of a controlled substance for sale, which was dismissed in the furtherance of justice.
The probation officer recommended a sixteen-level enhancement
pursuant to § 2L1.2(b)(1)(A)(i) on the basis of this information,
but he did not state from where he obtained this factual
information about Garza-Lopez’s conviction.
While the probation officer’s factual narrative in the PSR
suggests that Garza-Lopez was convicted of a “drug trafficking
offense,” the district court was not permitted to rely on the
PSR’s characterization of the offense in order to make its
determination of whether it was a “drug trafficking offense.”
In Shepard v. United States, 125 S. Ct. 1254, 1257, 1259-61
(2005), the Supreme Court rejected an expansive reading of Taylor
that would permit courts to examine documents other than
conclusive records made or used in adjudicating guilt when
characterizing a sentence for enhancement purposes. Accordingly,
it held that the district court in Shepard was 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.” Id. at 1257. Thus, under Shepard, a district court
is not permitted to rely on a PSR’s characterization of a
defendant’s prior offense for enhancement purposes. Similarly,
in United States v. Gutierrez-Ramirez, No. 03-41742, 2005 WL
9 762664, at *1 (5th Cir. Apr. 5, 2005), the PSR recommended a
sixteen-level increase for the commission of a prior “drug
trafficking offense.” The district court, after examining the
abstract of judgment, granted the increase. On appeal, the
government, arguing that the sentence should be affirmed, stated
that under Rodriguez-Duberney, the court “may look to sources
such as the PSR for the underlying facts of the prior
conviction.” Id. at *2. This court rejected the government’s
argument, holding that Rodriguez-Duberney “did not authorize
reference to a source other than the indictment to determine
whether the prior conviction could be classified as a ‘drug
trafficking offense.’” Id. at *3. Accordingly, this court held
that the district court erred, and it vacated and remanded the
defendant’s sentence. Id. at *3-6. Likewise, in a recent
unpublished case nearly identical to the present one, United
States v. Gonzalez-Borjas, No. 04-40238, 2005 WL 629822, at *1-3
(5th Cir. Mar. 18, 2005) (per curiam) (unpublished), this court
found that the district court had committed plain error when it
imposed a sixteen-level enhancement for committing a “drug
trafficking offense.” In Gonzalez-Borjas, the district court
adopted the PSR’s characterization of the defendant’s sentence as
a “drug trafficking offense.” This court reversed the
defendant’s sentence, holding that the district court had
committed plain error when finding that the defendant had
committed a “drug trafficking offense.” Gonzalez-Borjas, 2005 WL
10 629822, at *1-3; see also United States v. Martinez-Cortez, 988
F.2d 1408, 1451-17 (5th Cir. 1993) (holding that the district
court’s reliance on the PSR to characterize the defendant’s prior
offense for enhancement purposes was error); Navidad-Marcos, 367
F.3d at 907-09 (holding that the district court erred when it
relied on the PSR and the abstract of judgment when imposing a
sixteen-level enhancement for committing a “drug trafficking
offense”).
As for the statutory definition of § 11379(a), on which the
district court could properly rely, it encompasses activity that
does not fall within the definition of “drug trafficking offense”
under § 2L1.2. See Navidad-Marcos, 367 F.3d at 907. For
instance, § 11379(a) criminalizes the transportation of a
controlled substance for personal use and offers to transport,
sell, furnish, administer, or give away a controlled substance.
CAL. HEALTH & SAFETY CODE § 11379(a). None of these acts fall
within the definition of “drug trafficking offense” under
§ 2L1.2, which covers only the manufacture, import, export,
distribution, or dispensing of a controlled substance (or
possession with the intent to do any of these things). See
U.S.S.G. § 2L1.2, Application Note 1(B)(iv). Accordingly, the
district court could not have found that Garza-Lopez was
convicted of a “drug trafficking offense” solely by looking at
the language of § 11379(a) because it was overbroad. Because the
district court did not have before it the charging document or
11 jury instructions for Garza-Lopez’s 2001 conviction, it had
nothing proper to rely on that proved that Garza-Lopez was
convicted of a “drug trafficking offense.” Accordingly, the
district court erred when it found that Garza-Lopez was convicted
of a “drug trafficking offense.”
With respect to the second prong of the plain-error test, an
error is plain if it is “clear” or “obvious.” Olano, 507 U.S. at
734. As the Supreme Court held in Johnson v. United States, 520
U.S. 461, 467-68 (1997), “it is enough that the error be ‘plain’
at the time of appellate consideration.” As discussed above,
several recent cases have made it clear that the district court’s
reliance on the PSR was error. See, e.g., Shepard, 125 S. Ct. at
1257, 1259-61; Gutierrez-Ramirez, 2005 WL 762664, at *1-3;
Gonzalez-Borjas, 2005 WL 629822, at *1-3. Accordingly, the
district court’s error was plain.
With respect to the third and fourth prongs of the plain-
error test, we must determine “whether the defendant can show a
reasonable probability that, but for the district court’s
misapplication of the Guidelines, [the defendant] would have
received a lesser sentence.” Villegas, 2005 WL 627963, at *7.
In Villegas, the court stated that absent the enhancement, the
defendant’s “sentencing range would have been reduced from
between twenty-one and twenty-seven months to between ten and
sixteen months.” Id. at *7. It then held that “[b]ecause these
two sentencing ranges do not overlap, the district court’s error
12 necessarily increased [the defendant’s] sentence and thus
affected his substantial rights.” Id.; see also United States v.
Insaulgarat, 378 F.3d 456, 468 n. 17 (5th Cir. 2004) (holding
that because the district court’s error resulted in the
imposition of a sentence substantially greater than the maximum
otherwise permitted under the Sentencing Guidelines, the error
affected the defendant’s substantial rights and the fairness of
the judicial proceedings); Gracia-Cantu, 302 F.3d at 312 (same).
In the present case, without the sixteen-level enhancement for
committing a “drug trafficking offense,” Garza-Lopez’s adjusted
base offense level would have been at most thirteen, and his
sentencing range would have been at most thirty-three to forty-
one months, far less than the seventy-seven month sentence he
received. Thus, the district court’s error in the present case
resulted in the imposition of a sentence that was substantially
greater than would otherwise have been permitted under the
Sentencing Guidelines, thereby affecting Garza-Lopez’s
substantial rights and the fairness of the judicial proceedings.
See, e.g., Villegas, 2005 WL 627963, at *7; Insaulgarat, 378 F.3d
at 468 n.17; Gracia-Cantu, 302 F.3d at 312. Accordingly, we
conclude that the district court committed plain error when it
imposed the sixteen-level sentence enhancement, and we vacate
Garza-Lopez’s sentence and remand for resentencing.2 See
2 Because we vacate Garza-Lopez’s sentence, we need not address his argument that the district court committed error under
13 Villegas, 2005 WL 627963, at *7.
B. The Constitutionality of 8 U.S.C. § 1326(b)
Garza-Lopez next argues that 8 U.S.C. §§ 1326(b)(1) and (2)
are unconstitutional on their face and as applied in light of
Apprendi v. New Jersey, 530 U.S. 466 (2000).3 According to
Garza-Lopez, the “felony” and “aggravated felony” provisions
found in these sections are essential elements of the offense
that must be pled in the indictment and proved beyond a
reasonable doubt, not sentencing enhancement factors that a judge
should determine. He notes that in Almendarez-Torres v. United
States, 523 U.S. 224, 235 (1998), the Supreme Court rejected this
argument, holding that “Congress intended to set forth a
sentencing factor in subsection (b)(2) [of 8 U.S.C. § 1326] and
Booker by sentencing him under a mandatory guidelines regime. 3 8 U.S.C. §§ 1326(b)(1) and (2) state:
(b) Criminal penalties for reentry of certain removed aliens
Notwithstanding subsection (a) of this section, in the case of any alien described in such subsection--
(1) whose removal was subsequent to a conviction for commission of three or more misdemeanors involving drugs, crimes against the person, or both, or a felony (other than an aggravated felony), such alien shall be fined under Title 18, imprisoned not more than 10 years, or both;
(2) whose removal was subsequent to a conviction for commission of an aggravated felony, such alien shall be fined under such Title, imprisoned not more than 20 years, or both . . . .
14 not a separate criminal offense.” Nevertheless, he argues that
in light of Apprendi, there is reason to think that Almendarez-
Torres was wrongly decided. While Garza-Lopez thinks there is
reason to believe Almendarez-Torres was wrongly decided, he
admits in his brief that his argument that 8 U.S.C. §§ 1326(b)(1)
and (2) are unconstitutional is foreclosed in this circuit by
Almendarez-Torrez. He then states that he is simply raising this
argument on appeal to preserve it for possible review by the
Supreme Court.
Because Garza-Lopez made no objection to the alleged
constitutional error below, we review it for plain error.
United States v. Knowles, 29 F.3d 947, 951 (5th Cir. 1994). This
court has held that “[i]t is self-evident that basing a
conviction on an unconstitutional statute is both ‘plain’ and
‘error’ . . . .” Id. at 951.
Garza-Lopez’s argument that §§ 1326(b)(1) and (2) are
unconstitutional after Apprendi fails in light of Almendarez-
Torres and Fifth Circuit precedent. As Garza-Lopez readily
admits, in Almendarez-Torres, the Supreme Court effectively
rejected his argument. See Almendarez-Torres, 523 U.S. at 235.
Furthermore, Apprendi did not overrule Almendarez-Torres.
Instead, the Supreme Court stated in Apprendi that “we need not
revisit [Almendarez-Torres] for purposes of our decision today to
treat the case as a narrow exception to the general rule we
recalled at the outset.” Apprendi, 530 U.S. at 490. This court
15 has repeatedly rejected arguments like the one made by Garza-
Lopez and has held that Almendarez-Torres remains binding despite
Apprendi. See, e.g., United States v. Mendez-Villa, 346 F.3d
568, 570-71 (5th Cir. 2003) (per curiam); United States v.
Delgado-Nunez, 295 F.3d 494, 498 (5th Cir. 2002). Accordingly,
unconstitutional in light of Apprendi fails.
III. CONCLUSION
For the foregoing reasons, we VACATE Garza-Lopez’s sentence
and REMAND for resentencing consistent with this opinion.