PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 08-4464
MARVIN MAROQUIN-BRAN,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of North Carolina, at New Bern.
Louise W. Flanagan, Chief District Judge.
(7:07-cr-00107-FL-1)
Argued: September 25, 2009
Decided: November 9, 2009
Before MOTZ and AGEE, Circuit Judges, and
Mark S. DAVIS, United States District Judge for the
Eastern District of Virginia, sitting by designation.
Vacated and remanded by published opinion. Judge Motz
wrote the opinion, in which Judge Agee and Judge Davis
joined.
COUNSEL
ARGUED: G. Alan DuBois, OFFICE OF THE FEDERAL
PUBLIC DEFENDER, Raleigh, North Carolina, for Appel-
2 UNITED STATES v. MAROQUIN-BRAN
lant. Jennifer P. May-Parker, OFFICE OF THE UNITED
STATES ATTORNEY, Raleigh, North Carolina, for Appel-
lee. ON BRIEF: Thomas P. McNamara, Federal Public
Defender, Raleigh, North Carolina, for Appellant. George E.
B. Holding, United States Attorney, Anne M. Hayes, Assis-
tant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Raleigh, North Carolina, for Appel-
lee.
OPINION
DIANA GRIBBON MOTZ, Circuit Judge:
Marvin Maroquin-Bran, a Guatemalan citizen, pled guilty
to illegally re-entering the United States following deporta-
tion. After applying the sixteen-level sentencing enhancement
permitted by United States Sentencing Guidelines Manual
("U.S.S.G.") § 2L1.2(b)(1)(A) (2008), the district court sen-
tenced Maroquin-Bran to fifty-seven months in prison and
three years of supervised release. Maroquin-Bran appeals that
sentence. For the reasons that follow, we vacate and remand
for resentencing.
I.
The district court imposed the sentencing enhancement at
issue here on the basis of a years-earlier California conviction
and sentence.
In 1989, Maroquin-Bran pled guilty in California state
court to selling or transporting marijuana, in violation of Cal.
Health & Safety Code § 11360(a) (West 2007). The informa-
tion in that case charged Maroquin-Bran with "the crime of
SALE OR TRANSPORTATION OF MARIJUANA" and
alleged that he "did willfully and unlawfully transport, import
into the State of California, sell, furnish, administer, and give
UNITED STATES v. MAROQUIN-BRAN 3
away, and offer to transport, import into the State of Califor-
nia, sell, furnish, administer, and give away, and attempt to
import into the State of California and transport marijuana."
The court sentenced him to probation and a two-year sus-
pended prison sentence. The court later revoked his probation
and imposed a two-year term of incarceration.
As a result of this conviction, the United States deported
Maroquin-Bran following his imprisonment. In March 2002,
he illegally re-entered the country. In August 2007, the Gov-
ernment charged Maroquin-Bran with illegal presence in the
United States after having previously been deported, in viola-
tion of 8 U.S.C. § 1326 (2006). He pled guilty.
At sentencing, over defense counsel’s objection, the district
court imposed the sixteen-level enhancement that U.S.S.G.
§ 2L1.2(b)(1)(A) permits when a defendant re-enters illegally
after being deported for a drug-trafficking conviction that
resulted in a prison sentence of more than thirteen months.
Relying on the probation officer’s interpretation of
§ 2L1.2(b)(1)(A), the court found that Maroquin-Bran’s 1989
California conviction for sale or transportation of marijuana
constituted a qualifying prior conviction for purposes of the
sixteen-level enhancement. Without the sixteen-level
enhancement, but with the four-level enhancement for which
Maroquin-Bran concedes he qualifies, his guideline range
would be 15-21 months; with the sixteen-level enhancement
the guideline imprisonment range was 57-71 months. Accord-
ingly, the court sentenced Maroquin-Bran to fifty-seven
months in prison, followed by three years of supervised
release.
Maroquin-Bran timely noted this appeal.
II.
As he did in the district court, Maroquin-Bran argues that
his prior California conviction provides no basis for imposi-
4 UNITED STATES v. MAROQUIN-BRAN
tion of the sixteen-level enhancement. Section 2L1.2(b)(1)(A)
provides that a court may apply a sixteen-level enhancement
"[i]f the defendant previously was deported . . . after . . . a
conviction for a felony that is . . . a drug trafficking offense
for which the sentence imposed exceeded 13 months."
U.S.S.G. § 2L1.2(b)(1)(A) (emphasis added). The Guidelines
define a "drug trafficking offense" as "an offense under fed-
eral, state, or local law that prohibits the manufacture, import,
export, distribution, or dispensing of, or offer to sell a con-
trolled substance . . . or the possession of a controlled sub-
stance . . . with intent to manufacture, import, export,
distribute, or dispense." Id. application note 1(B)(iv).
Maroquin-Bran’s appeal requires us to determine whether
the proper predicate for the sixteen-level enhancement is a
prior conviction for actual drug trafficking activity (e.g., man-
ufacture, import, export, distribution, dispensing of, or sale, or
possession with intent to engage in any of these activities), or
merely a prior conviction under a law that inter alia prohibits
drug trafficking. Here, as in the district court, the Government
relies on a nonbinding unpublished opinion, United States v.
Alvarez-Granados, 228 F. App’x 350 (4th Cir. 2007), to argue
for the latter conclusion. Brief of Appellee 11-13. The district
court, following the probation officer’s recommendation,
adopted the Government’s view. We must reverse because the
interpretation of U.S.S.G. § 2L1.2(b)(1)(A) adopted in
Alvarez-Granados conflicts with the plain meaning of the
Guidelines.
Section 2L1.2(b)(1)(A) requires a prior "conviction for a
felony that is a drug trafficking offense," not simply a convic-
tion under a statute that criminalizes drug trafficking as well
as other activities (emphasis added). The predicate conviction
must itself be a drug trafficking offense. To adopt the district
court’s interpretation would require rewriting the Guideline to
require a prior "conviction for a felony that is an offense
under a drug trafficking statute." This rewriting is beyond our
purview as a court and properly remains the domain of either
UNITED STATES v. MAROQUIN-BRAN 5
the Sentencing Commission or the Congress. See United
States v. Harris, 128 F.3d 850, 855 (4th Cir. 1997) (declining
to "rewrite the Guidelines and bypass the framework created
by the Commission").
Therefore, if a statute prohibits several offenses, some
which constitute drug trafficking and others which do not, the
defendant must have been convicted of an offense that specif-
ically involves drug trafficking before the sentencing court
can adopt the enhancement. In so concluding, we join every
other circuit to have considered, in a published opinion,
whether a prior conviction under a statute that criminalizes
both trafficking and non-trafficking conduct qualifies as a
"drug trafficking offense" under U.S.S.G. § 2L1.2(b)(1)(A).
See United States v. Medina-Almaguer, 559 F.3d 420, 422-23
(6th Cir. 2009); United States v. Lopez-Salas, 513 F.3d 174,
177-78, 180 (5th Cir. 2008) (per curiam); United States v.
Garcia-Medina, 497 F.3d 875, 877 (8th Cir. 2007); United
States v. Almazan-Becerra, 482 F.3d 1085, 1089-90 (9th Cir.
2007); cf. United States v. Herrera-Roldan, 414 F.3d 1238,
1240 (10th Cir. 2005); United States v. Madera-Madera, 333
F.3d 1228, 1231-33 (11th Cir. 2003).
This interpretation comports with the rationale behind a
sentencing enhancement designed "‘to insure that those illegal
re-entry defendants with [more] serious prior offenses receive
more serious sentences.’" Herrera-Roldan, 414 F.3d at 1244
(alteration in original) (quoting the Government’s explanation
of § 2L1.2(b)’s purpose). A drug-trafficking enhancement
should, of course, enhance the sentences of drug traffickers—
and not others. To adopt the Government’s view could yield
an absurd and unjust result: a check forger convicted under an
omnibus law that also prohibited drug sales would qualify for
this enhancement. The interpretation we adopt here, based on
the Guidelines’ plain meaning, tailors the enhancement to the
drug traffickers it targets.
6 UNITED STATES v. MAROQUIN-BRAN
III.
The question remains whether Maroquin-Bran’s particular
prior conviction provided a proper basis for the enhancement.
We review de novo a district court’s interpretation of the
Guidelines, and thus its determination that a prior conviction
qualifies as a drug trafficking offense under § 2L1.2(b)(1)(A).
See United States v. Moreland, 437 F.3d 424, 433 (4th Cir.
2006).
To determine whether a prior conviction supports an
enhancement, a court must first compare the "statutory defini-
tion of the prior offense" to the Guidelines’ definition of a
qualifying prior offense. See Taylor v. United States, 495 U.S.
575, 602 (1990). Applying the Guidelines’ definition of "drug
trafficking offense" to the case at hand, Maroquin-Bran’s
prior conviction under Cal. Health & Safety Code § 11360
does not, as we have explained above, categorically qualify
him for the enhancement as a matter of statutory definition.
Section 11360 prohibits two offenses: sale of marijuana and
transportation of marijuana. The former properly triggers the
sixteen-level sentencing enhancement, but the latter may not.
See California v. Rogers, 486 P.2d 129, 134 (Cal. 1971). If
the California court did not convict Maroquin-Bran for drug-
trafficking conduct, the district court cannot enhance his sen-
tence under § 2L1.2(b)(1)(A).
When, as here, the underlying statute prohibits both quali-
fying and non-qualifying offenses, the sentencing court may
"determin[e] the character of" the prior offense by "examining
the statutory definition, charging document, written plea
agreement, transcript of plea colloquy, and any explicit fac-
tual finding by the trial judge to which the defendant
assented." Shepard v. United States, 544 U.S. 13, 16 (2005).
Given that the district court in this case did not have the
benefit of the proper interpretation of § 2L1.2(b)(1)(A), we
vacate the sentence and remand for resentencing in accor-
UNITED STATES v. MAROQUIN-BRAN 7
dance with this opinion. On remand, if the district court deter-
mines that, based on Shepard-approved documents, the
Government can demonstrate that the California court con-
victed Maroquin-Bran for drug-trafficking activity, it can
apply the sixteen-level enhancement. If the district court
determines that the Government cannot demonstrate that the
California court convicted Maroquin-Bran for drug-
trafficking activity, it cannot base the sixteen-level enhance-
ment on the California conviction.*
IV.
For the foregoing reasons, we vacate the sentence and
remand for resentencing.
VACATED AND REMANDED
*Maroquin-Bran also contends that the district court, in determining
that his California conviction constituted an "aggravated felony," improp-
erly made him eligible for a twenty-year maximum term of imprisonment
under 8 U.S.C. § 1326(b)(2) and an eight-level sentencing enhancement
under U.S.S.G. § 2L1.2(b)(1)(C). Given that the district court imposed
neither the twenty-year maximum nor the eight-level enhancement, we
address these arguments only because of their possible relevance on
remand. "Aggravated felony" has the same meaning under both the statu-
tory and guideline provisions. See United States v. Matamoros-Modesta,
523 F.3d 260, 264 (4th Cir. 2008). Such a felony requires "illicit traffick-
ing in a controlled substance . . . , including a drug trafficking crime." Id.
application note 3(A); 8 U.S.C. § 1101(a)(43)(B) (2006). Mere possession
does not constitute "illicit trafficking" or a "drug trafficking crime." See
18 U.S.C. § 924(c)(2) (2006); 21 U.S.C. § 841(a) (2006); Lopez v. Gon-
zales, 549 U.S. 47, 53 (2006). Thus, on remand, the district court cannot
impose either the twenty-year maximum or the eight-level enhancement
on the basis of the California conviction—unless it determines that the
conviction constituted a trafficking crime.