Case: 09-40207 Document: 00511353817 Page: 1 Date Filed: 01/18/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
January 18, 2011
No. 09-40207 Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee
v.
DECIDERIO MARBAN-CALDERON,
Defendant - Appellant
Appeal from the United States District Court
for the Eastern District of Texas
Before HIGGINBOTHAM, SMITH, and ELROD, Circuit Judges.
PATRICK E. HIGGINBOTHAM, Circuit Judge:
Defendant-appellant Deciderio Marban-Calderon (“Marban”) pleaded
guilty in October 2008 to one count of illegal reentry following a previous
deportation.1 At a sentencing hearing in February 2009, Marban received a 16-
level sentence enhancement for a prior felony drug trafficking offense 2 based on
his 2005 Texas state-law conviction for delivery of a controlled substance.3
Although we have held that this offense does not qualify for a drug trafficking
1
See 8 U.S.C. §§ 1326(a)–(b).
2
See U.S.S.G. § 2L1.2(b)(1)(A)(i) (2008).
3
See TEX . HEALTH & SAFETY CODE § 481.112(a).
Case: 09-40207 Document: 00511353817 Page: 2 Date Filed: 01/18/2011
No. 09-40207
enhancement under past editions of the Sentencing Guidelines, the Guidelines
were amended effective November 2008 to broaden the definition of a drug
trafficking offense. Applying the 2008 edition of the Sentencing Guidelines, we
affirm Marban’s sentence.
I
Marban first argues that the district court violated the Ex Post Facto
Clause4 by applying the 2008 Guidelines to conduct occurring before those
Guidelines went into effect. Because Marban did not object at sentencing to the
use of the 2008 Guidelines, we review only for plain error.5 Marban must show
that the alleged error was “clear or obvious” and that it affects his substantial
rights.6
Our court has not yet decided whether the Ex Post Facto Clause permits
retroactive application of Sentencing Guidelines that recommend a greater
sentence than the Guidelines in effect at the time of the offense. 7 Our sister
circuits which have considered this issue are divided.8 In light of this
4
U.S. CONST . art. I, § 9, cl. 3.
5
Puckett v. United States, 129 S. Ct. 1423, 1428–29 (2009) (citing FED . R. CRIM . P.
52(b)); United States v. Castillo-Estevez. 597 F.3d 238, 240 (5th Cir. 2010), cert. denied, 131
S. Ct. 457 (2010).
6
Puckett, 129 S. Ct. at 1429.
7
See Castillo-Estevez, 597 F.3d at 241 (expressly reserving this question).
8
Compare, e.g., United States v. Demaree, 459 F.3d 791, 795 (7th Cir. 2006) (holding
that the Ex Post Facto Clause does not apply to the advisory Sentencing Guidelines), and
United States v. Barton, 455 F.3d 649, 655 n.4 (6th Cir. 2006) (same), with United States v.
Turner, 548 F.3d 1094, 1099–1100 (D.C. Cir. 2008) (holding that the Ex Post Facto Clause
prohibits retroactive application Sentencing Guidelines that would recommend a greater
2
Case: 09-40207 Document: 00511353817 Page: 3 Date Filed: 01/18/2011
No. 09-40207
disagreement, we held in United States v. Castillo-Estevez that applying an
amended version of the Sentencing Guidelines does not rise to the level of plain
error.9
Our decision in Castillo-Estevez directly controls this case. Accordingly,
we follow the district court in reviewing Marban’s sentence under the 2008
edition of the Sentencing Guidelines.
II
We have held on several occasions that, under past editions of the
Sentencing Guidelines, a Texas conviction for “delivery of a controlled substance”
did not qualify as a drug trafficking offense.10 Applying the categorical approach
of Taylor and Shepard, we consider only the elements of the offense and those
facts essential to the conviction.11 Under Texas law, a defendant may be
convicted of delivery of a controlled substance based on a mere “offer[] to sell.” 12
Prior to November 2008, however, the Guidelines definition of a drug trafficking
offense required that the defendant actually possess the drugs or cause them to
sentence), United States v. Ortiz, 621 F.3d 82, 87 (2d Cir. 2010) (adopting Turner), United
States v. Lewis, 606 F.3d 193, 199 (4th Cir. 2010), United States v. Wood, 486 F.3d 781, 789–91
(3d Cir. 2007), and United States v. Larrabee, 436 F.3d 890, 894 (8th Cir. 2006).
9
Castillo-Estevez, 597 F.3d at 240–41.
10
See United States v. Ibarra-Luna, No. 09-40768, slip op. at 3–6 (5th Cir. Dec. 22,
2010); United States v. Morales-Martinez, 496 F.3d 356, 358 (5th Cir. 2007); United States v.
Gonzales, 484 F.3d 712, 714–15 (5th Cir. 2007); United States v. Garza-Lopez, 410 F.3d 268,
273 (5th Cir. 2005).
11
See Shepard v. United States, 544 U.S. 13, 16 (2005); Taylor v. United States, 495
U.S. 575, 602 (1990).
12
TEX . HEALTH & SAFETY CODE §§ 481.002, 481.112(a).
3
Case: 09-40207 Document: 00511353817 Page: 4 Date Filed: 01/18/2011
No. 09-40207
be transferred, facts which are not necessarily proven when a defendant is
convicted of an offer to sell.13
The Sentencing Guidelines were subsequently amended to add “offer[s] to
sell” to the definition of a drug trafficking offense.14 Beginning with the 2008
edition of the Sentencing Guidelines,
“[d]rug trafficking offense” means an offense under federal, state, or
local law that prohibits the manufacture, import, export,
distribution, or dispensing of, or offer to sell 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.15
Following this change, a Texas conviction for delivery of a controlled
substance—whether by active transfer, by constructive transfer, or by offer to
sell—necessarily qualifies as a drug trafficking offense under the Sentencing
Guidelines. Accordingly, the district court did not err by applying the felony
drug trafficking enhancement to Marban’s sentence.16
The judgment of the district court is AFFIRMED.
13
U.S.S.G. § 2L1.2 cmt. n.1(b)(iv) (2007); see Ibarra-Luna, slip op. at 4; Morales-
Martinez, 496 F.3d at 358.
14
U.S.S.G. amend. 722 (App. C & Supp. 2010).
15
Id. § 2L1.2 cmt. n.1(b)(iv) (2008) (emphasis added).
16
This holding is foreshadowed by our opinion in Ibarra-Luna, slip op. at 4–5.
4