UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4362
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ANTONIO ALVAREZ-GRANADOS, a/k/a Hiriberto
Reyes-Macedo,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Robert J. Conrad, Jr.,
District Judge. (3:05-cr-00047)
Submitted: May 11, 2007 Decided: May 30, 2007
Before WILKINSON, WILLIAMS, and MICHAEL, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Cecilia Oseguera, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA,
INC., Charlotte, North Carolina, for Appellant. Gretchen C. F.
Shappert, United States Attorney, Jonathan A. Vogel, Assistant
United States Attorney, Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Antonio Alvarez-Granados pled guilty to unlawful reentry
by a deported alien, in violation of 8 U.S.C. § 1326(a), (b)(2)
(2000), and was sentenced to sixty-four months imprisonment.
Alvarez-Granados’ appeal of his sentence raises two issues:
(1) whether the district court plainly erred in sentencing him to
more than two years imprisonment under 8 U.S.C. § 1326(b)(2) on the
ground that he had previously been deported after conviction for an
aggravated felony,1 and (2) whether the district court erred in
making a sixteen-level enhancement under U.S. Sentencing Guidelines
Manual § 2L1.2(b)(1)(A)(i) (2004), based on Alvarez-Granados’
pre-deportation conviction of a California drug trafficking offense
for which the sentence imposed was more than thirteen months. For
the reasons explained below, we affirm the sentence.
Alvarez-Granados was deported in 1990, 1992, and 1995,
each time after being convicted in California of a state drug
offense. He was convicted once of felony sale or transportation of
marijuana in violation of California Health & Safety Code
§ 11360(a) (West 2007), and twice of felony sale or transportation
1
Title 8, section 1326(b)(2) provides a maximum sentence of
twenty years for a defendant whose “removal was subsequent to a
conviction for commission of an aggravated felony;” otherwise, the
maximum sentence is two years under § 1326(a), or ten years under
§ 1326(b)(1) if the defendant was deported after conviction of a
non-aggravated felony.
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of a controlled substance (cocaine base) in violation of California
Health & Safety Code § 11352(a) (West 2007).
Alvarez-Granados first suggests that he should not have
been sentenced to more than two years imprisonment because his
prior convictions were not aggravated felonies under 8 U.S.C.
§ 1326(b)(2), as defined in 8 U.S.C. § 1101(43)(B) or 18 U.S.C.A.
§ 924(c)(2) (West Supp. 2007). Because he did not raise this issue
in the district court, we review the issue for plain error. United
States v. Olano, 507 U.S. 725, 732-37 (1993). We conclude that,
even if the district court erred in finding that Alvarez-Granados’
prior offenses were aggravated felonies, the error did not affect
his substantial rights because he had several times been deported
subsequent to felony convictions. Regardless of the specific
offense, these prior felony convictions subjected Alvarez-Granados
to a ten-year maximum sentence under § 1326(b)(1).
Next, Alvarez-Granados contends that his prior
convictions do not qualify as drug trafficking offenses under the
definition set out in the commentary to § 2L1.2 because there is no
reliable evidence as to the specific conduct underlying his
convictions, and neither solicitation (offers to commit drug
offenses) nor transportation of drugs, both possible bases for
conviction under § 11352 and § 11360, are included in the § 2L1.2
definition of a drug trafficking offense. The district court’s
determination that a prior conviction qualifies as a drug
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trafficking conviction under USSG § 2L1.2(b)(1)(A) is an issue of
guideline interpretation which is reviewed de novo. United
States v. Navidad-Marcos, 367 F.3d 903, 907 (9th Cir. 2004).
Generally, when the fact of a prior conviction does not
categorically establish the nature of the prior offense, with the
result that a fact about the prior conviction is in dispute, the
sentencing court may consider only “the charging document, the
terms of a plea agreement, the plea colloquy, the statutory
definition, or any explicit finding of the trial judge to which the
defendant assented or other admissions of the defendant” to resolve
the issue. United States v. Collins, 412 F.3d 515, 521 (4th Cir.
2005) (citing Shepard v. United States, 544 U.S. 13, 25 (2005));
see also Taylor v. United States, 495 U.S. 575 (1990).
However, Alvarez-Granados’ prior convictions were
unquestionably drug trafficking offenses under the current
definition of the term in the commentary to § 2L1.2, which requires
only that the defendant have been convicted under a statute that
prohibits “the manufacture, import, export, distribution, or
dispensing of a controlled substance,” or possession of a
controlled substance with the intent to do any of the above. USSG
§ 2L1.2, comment. (n.1(B)(iv)). Application Note 5 adds that
“[p]rior convictions of offenses counted under subsection (b)(1)
include the offenses of aiding and abetting, conspiring, and
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attempting to commit such offenses.” The California statutes under
which Alvarez-Granados was convicted fall within this definition.
Alvarez-Granados relies on Ninth Circuit decisions that
have held, pursuant to Taylor, that convictions under California
Health & Safety Code § 11360(a) and similar California drug
statutes do not categorically qualify as drug trafficking offenses
under § 2L1.2 because the statutes are overbroad. See, e.g.,
United States v. Almazan-Becerra, 482 F.3d 1085, 1088 (9th Cir.
2007); United States v. Rivera-Sanchez, 247 F.3d 905, 908-09 (9th
Cir. 2001) (interpreting pre-2001 version of § 2L1.2).2 In
Alvarez-Granados’ case, the charging documents recite the range of
conduct proscribed by California Health & Safety Code § 11352(a)
and § 11360(a), but do not identify specifically what offense he
committed. Other available court documents relating to the
offenses do not provide acceptably reliable evidence that
Alvarez-Granados committed a drug trafficking crime under Ninth
Circuit case law.
2
Before the 2001 amendment, the sixteen-level enhancement in
§ 2L1.2 was triggered by a prior conviction for an “aggravated
felony,” as defined in 8 U.S.C. § 1101(a)(43) (2000). Title 8,
§ 1101(a)(43)(B) provides that one type of “aggravated felony” is
“illicit trafficking in a controlled substance (as defined in
section 802 of Title 21), including a drug trafficking crime (as
defined in section 924(c) of Title 18). . . .” Title 18, § 924(c)
defines a “drug trafficking crime” as “any felony punishable under
the Controlled Substances Act (21 U.S.C. 801 et seq.), the
Controlled Substances Import and Export Act (21 U.S.C. 951 et
seq.), or chapter 705 of title 46.”
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We agree with the government that a different approach is
necessary in light of the current definition of a “drug trafficking
offense” in § 2L1.2 and the fact that the acts prohibited in the
California statute all come within its definition of a “drug
trafficking offense.” See United States v. Madera-Madera, 333 F.3d
1228, 1233 (11th Cir. 2003) (holding that “the question is not
whether the wording of the [state] statute exactly matches the
Application Note to the Guideline, but rather whether the federal
definition of drug trafficking in the Guidelines is satisfied by
[the state statute]”). Id.
The Ninth Circuit has rejected Madera-Madera as
unpersuasive because it “failed to cite Taylor[ v. United States,
495 U.S. 575 (1990)] or undertake a proper Taylor categorical
analysis.” United States v. Villa-Lara, 451 F.3d 963, 965 n.2 (9th
Cir. 2006). The Tenth Circuit has held that Madera-Madera’s
application is limited to the Georgia drug trafficking statute at
issue in that case. United States v. Herrera-Roldan, 414 F.3d
1238, 1241-43 (10th Cir. 2005). However, these decisions overlook
the fact that, for application of the sixteen-level enhancement,
§ 2L1.2 currently requires only that the defendant have been
convicted of some offense (but not any particular offense) under a
statute that “prohibits the manufacture, import, export,
distribution or dispensing of a controlled substance . . . or the
possession of a controlled substance . . . with intent to
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manufacture, import, export, distribute or dispense.” USSG
§ 2L1.2, comment. (n.1(B)(iv)). Alvarez-Granados’ California
convictions meet this requirement. The current § 2L1.2 definition
does not require that the defendant have been convicted of a drug
trafficking offense, only that he have been convicted of some
offense under a statute that prohibits drug trafficking.
Alvarez-Granados’ argument that he might have been
convicted of a non-trafficking offense such as transportation of
drugs for personal use makes sense only under the definition of
drug trafficking offense that was used in § 2L1.2 before the 2001
amendment. It has no merit under the definition currently in use.
Cf. United States v. Mills, ___ F.3d ___, 2007 WL 1310303, at *3-5
(4th Cir. May 7, 2007) (rejecting defendant’s attempt to
incorporate federal statutory definition of “counterfeit substance”
into guideline where term is undefined and holding that omission of
definition was intentional). Therefore, we conclude that the
district court did not err in holding that Alvarez-Granados had
previously been deported after being convicted of a drug
trafficking crime as defined in § 2L1.2.
Accordingly, we affirm the sentence. We dispense with
oral argument because the facts and legal contentions are
adequately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED
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