United States v. Valencia-Tepoz

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 03-4729
RAYMUNDO VALENCIA-TEPOZ,
Defendant-Appellant.

Appeal from the United States District Court
for the Middle District of North Carolina, at Durham.
N. Carlton Tilley, Jr., Chief District Judge.
(CR-03-103)

Submitted: February 4, 2004

Decided: March 17, 2004

Before WIDENER, LUTTIG, and MOTZ, Circuit Judges.

Affirmed by unpublished per curiam opinion.

COUNSEL

Louis C. Allen III, Federal Public Defender, William S. Trivette,
Assistant Federal Public Defender, Greensboro, North Carolina, for
Appellant. Anna Mills Wagoner, United States Attorney, Angela
Hewlett Miller, OFFICE OF THE UNITED STATES ATTORNEY,
Greensboro, North Carolina, for Appellee.
2 UNITED STATES v. VALENCIA-TEPOZ
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

OPINION

PER CURIAM:

Raymundo Valencia-Tepoz pled guilty to illegal reentry after con-
viction of an aggravated felony, in violation of 8 U.S.C. § 1326(a),
(b)(2) (2000), and was sentenced to a term of fifty-seven months
imprisonment. Valencia-Tepoz’s attorney has filed a brief pursuant to
Anders v. California, 386 U.S. 738 (1967), raising as a potentially
meritorious issue the enhancement of his client’s base offense level
by sixteen levels on the ground that the prior felony was a drug traf-
ficking offense as defined in U.S. Sentencing Guidelines Manual
§ 2L1.2(b)(1)(A)(i) (2002), but asserting that, in his view, there are no
meritorious issues for appeal. Valencia-Tepoz has been informed of
his right to file a pro se supplemental brief, but has not filed a brief.
We affirm the conviction and sentence.

Valencia-Tepoz pled guilty in 1999 to maintaining a stash house in
violation of 21 U.S.C. § 856 (2000). The elements of this offense are
that the defendant knowingly opened or maintained a place for the
manufacture, distribution, or use of any controlled substance.
Valencia-Tepoz was sentenced to eighteen months imprisonment and
deported to Mexico in January 2000. Valencia-Tepoz was arrested in
North Carolina in June 2001 and pled guilty to illegal reentry after
being deported for conviction of an aggravated felony. An "aggra-
vated felony," as used in § 1326(b)(2), means a drug trafficking crime
as defined in 18 U.S.C. § 924(c) (2000), see 8 U.S.C. § 1101(A)
(43)(b) (2000), while § 924(c)(2) defines a drug trafficking crime as
"any felony punishable under the federal Controlled Substances Act
(21 U.S.C. 801 et seq.). . . ." Valencia-Tepoz was properly convicted
of the instant offense.

With respect to the sentence, a "drug trafficking offense" is defined
in the commentary to USSG § 2L1.2(b)(1)(A) as a federal or state
offense that involves "the manufacture, import, export, distribution, or
 UNITED STATES v. VALENCIA-TEPOZ 3
dispensing" of drugs or possession of drugs with intent to do any of
the above. USSG § 2L1.2(b)(1)(A), comment. n.1(B)(iii). The guide-
line definition does not include offenses involving mere use of drugs
or possession of drugs without intent to distribute or otherwise traffic
in drugs.

In support of the enhancement, the government submitted a copy
of Valencia-Tepoz’s plea agreement in the prior case, which included
a factual basis stating that he knowingly maintained a place for dis-
tributing methamphetamine and describing a distribution that took
place in his residence. At the sentencing hearing, the district court
considered the plea agreement and the incorporated factual basis and
determined that Valencia-Tepoz’s conviction for maintaining a stash
house was a drug trafficking offense.

In cases where a sentence enhancement depends on the nature of
a prior conviction, this court has approved a categorical approach
which focuses on the fact of the conviction and the definition of the
prior offense. United States v. Brandon, 247 F.3d 186, 193 (4th Cir.
2001) (following Taylor v. United States, 495 U.S. 575 (1990)). For
those cases where the definition of the prior offense is broad and
therefore ambiguous, the court may look to the facts contained in the
charging document and the jury instructions, if any, to determine
whether the defendant committed a crime of violence. Id. The focus
is limited to "the facts necessarily decided by the prior conviction."
Id. at 194 (quoting United States v. Kirksey, 138 F.3d 120, 124-25
(4th Cir. 1998)).

Although we have not addressed whether the sentencing court may
consider a plea agreement to determine whether a prior offense is a
predicate offense for sentence enhancement, other circuits that have
addressed the issue have held that Taylor permits the court to consider
a plea agreement. See United States v. Venegas-Ornelas, 348 F.3d
1273, 1275 (10th Cir. 2003) (categorical approach permits consider-
ation of records of prior proceeding such as charging documents and
"any plea thereto" to determine aggravated felony under
§ 2L1.2(b)(1)(D)) (quoting United States v. Zamora, 222 F.3d 756,
764 (10th Cir. 2000)); United States v. Hill, 131 F.3d 1056, 1064-65
(D.C. Cir. 1997) (court may consider guilty plea to determine whether
prior conviction was crime of violence warranting enhancement under
4 UNITED STATES v. VALENCIA-TEPOZ
USSG § 2K2.1(a)(2); collecting cases). Hill and the cases collected
therein predate Brandon and Kirksey, but, like Venegas-Ornelas, are
in accord with the holding in Brandon that, for those cases where the
definition is broad and does not immediately clarify whether the
offense was a predicate conviction, the court may look to the charging
document and other certified court records, if necessary, to determine
the "necessarily found elements" of the defendant’s specific crime.
Brandon, 247 F.3d at 194 (quoting United States v. Watkins, 54 F.3d
163, 166 (3d Cir. 1995)).

Here, the district court properly looked beyond the fact of the con-
viction in Valencia-Tepoz’s case because the offense of maintaining
a stash house could involve maintaining a place for drug use only.
Based on the authorities cited previously, we conclude that the district
court did not err in considering his plea agreement. Because the fac-
tual basis for Valencia-Tepoz’s guilty plea established that his offense
was a drug trafficking offense, the court did not err in deciding that
he qualified for the sixteen-level enhancement under § 2L1.2(b)(1)
(A)(i).

Pursuant to Anders, this court has reviewed the record for revers-
ible error and found none. We therefore affirm the conviction and
sentence. This court requires that counsel inform his client, in writing,
of his right to petition the Supreme Court of the United States for fur-
ther review. If the client requests that a petition be filed, but counsel
believes that such a petition would be frivolous, then counsel may
move this court for leave to withdraw from representation. Counsel’s
motion must state that a copy thereof was served on the client. We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and argu-
ment would not aid the decisional process.

AFFIRMED