Case: 13-40157 Document: 00512501242 Page: 1 Date Filed: 01/15/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 13-40157 FILED
Summary Calendar January 15, 2014
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
LUIS PEREZ-MELGAREJO,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:12-CR-1555-1
Before KING, DeMOSS, and GRAVES, Circuit Judges.
PER CURIAM: *
Luis Perez-Melgarejo appeals the sentence imposed following his guilty
plea conviction for being found unlawfully in the United States after
deportation in violation of 8 U.S.C. § 1326. He contends that the district court
plainly erred when it enhanced his sentence based on a finding that his 2011
Missouri conviction for possession with intent to distribute, deliver, or sell
more than five grams of marijuana was a felony drug trafficking offense for
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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No. 13-40157
purposes of U.S.S.G. § 2L1.2(b)(1)(A)(i). Relying on the Supreme Court’s
decision in Moncrieffe v. Holder, 133 S. Ct. 1678 (2013), as well as our decision
in United States v. Garza-Lopez, 410 F.3d 268 (5th Cir. 2005), Perez-Melgarejo
argues that the Missouri statute under which he was convicted is broader than
the drug trafficking offense definition set forth in the commentary to § 2L1.2
because the statute criminalizes the possession of a small amount of marijuana
with the intent to give it away or offer to give it away to another person for no
remuneration. Because the state court documents did not narrow his
conviction to a qualifying drug trafficking offense, he argues that the district
court’s application of the § 2L1.2(b)(1)(A)(i) enhancement was a clear and
obvious error.
Perez-Melgarejo did not object to the § 2L1.2(b)(1)(A)(i) enhancement in
the district court. Our review therefore is for plain error. See United States v.
Villegas, 404 F.3d 355, 358 (5th Cir. 2005). To show plain error, Perez-
Melgarejo must show a forfeited error that is clear or obvious and that affects
his substantial rights. See Puckett v. United States, 556 U.S. 129, 135 (2009).
If he makes such a showing, we have the discretion to correct the error but only
if it seriously affects the fairness, integrity, or public reputation of judicial
proceedings. See id.
Section 2L1.2(b)(1)(A)(i) provides that the offense level for unlawfully
entering or remaining in the United States shall be increased by 16 levels if
the defendant was deported after a conviction for a felony drug trafficking
offense for which the sentence imposed exceeded 13 months, if the conviction
receives criminal history points. § 2L1.2(b)(1)(A)(i). The commentary to
§ 2L1.2 defines a drug trafficking offense as “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 the possession of a
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No. 13-40157
controlled substance . . . with intent to manufacture, import, export, distribute,
or dispense.” § 2L1.2, comment. (n.1(B)(iv)).
The state court documents provide that on April 1, 2011, Perez-
Melgarejo was convicted of possession with intent to distribute, deliver, or sell
more than five grams of marijuana in violation of MO. ANN. STAT. § 195.211(1)
and (3). For purposes of § 195.211, the term “distribute” means “to deliver
other than by administering or dispensing a controlled substance.” MO. ANN.
STAT. § 195.010(12). The term “deliver” means “the actual, constructive, or
attempted transfer from one person to another of drug paraphernalia or of a
controlled substance, or an imitation controlled substance, whether or not
there is an agency relationship, and includes a sale.” § 195.010(8). Finally,
the term “sale” includes a “barter, exchange, or gift, or offer therefor, and each
such transaction made by any person, whether as principal, proprietor, agent,
servant or employee.” § 195.010(38).
In Garza-Lopez, we vacated the defendant’s sentence and remanded
because the California statute at issue criminalized activity that did not fall
within the definition of a drug trafficking offense under § 2L1.2. Garza-Lopez,
410 F.3d at 274-75. Specifically, we concluded that the statute was broader
than the drug trafficking offense definition set forth in the commentary to
§ 2L1.2 because the statute criminalized “the transportation of a controlled
substance for personal use and offers to transport, sell, furnish, administer, or
give away a controlled substance.” Id. at 274. Because the district court did
not have appropriate documents upon which it could have relied on to
determine whether the defendant had been convicted of a drug trafficking
offense, we held that the district court’s application of the § 2L1.2(b)(1)(A)(i)
enhancement amounted to plain error. Id. at 275.
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No. 13-40157
After our decision in Garza-Lopez, the United States Sentencing
Commission amended § 2L1.2’s definition of a drug trafficking offense to
include offers to sell a controlled substance. § 2L1.2, comment. (n.1(B)(iv));
United States v. Marban-Calderon, 631 F.3d 210, 211-12 (5th Cir. 2011). We
have not conclusively answered the question of whether a conviction for giving
away or offering to give away a controlled substance constitutes a drug
trafficking offense under the post-2008 version of § 2L1.2. Further, the
Supreme Court’s decision in Moncrieffe addressed whether an alien’s Georgia
conviction for possession with intent to distribute 1.3 grams of marijuana
qualified as an aggravated felony for purposes of 8 U.S.C. § 1101(a)(43)(B),
Moncrieffe, 133 S. Ct. at 1683-84, and we have yet to address Moncrieffe’s
effect, if any, on whether a conviction for sharing a small amount of marijuana
for no remuneration qualifies as a drug trafficking offense under
§ 2L1.2(b)(1)(A)(i). Because the issue is subject to reasonable debate and the
error is not readily apparent, the district court’s application of the
§ 2L1.2(b)(1)(A)(i) enhancement, if erroneous, did not rise to the level of a clear
or obvious error. See United States v. Ellis, 564 F.3d 370, 377-78 (5th Cir.
2009). Accordingly, Perez-Melgarejo cannot show plain error, and the district
court’s judgment is AFFIRMED.
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