UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 02-20713
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
JULIO CESAR RODRIGUEZ-DUBERNEY,
Defendant-Appellant.
Appeal from the United States District Court
For the Southern District of Texas, Houston
March 25, 2003
Before JONES, WIENER, and DeMOSS, Circuit Judges.
DeMOSS, Circuit Judge:
Appellant Julio Cesar Rodriguez-Duberney (“Duberney”) pleaded
guilty to one count of illegally reentering the United States after
deportation in violation of 8 U.S.C. §§ 1326(a) and (b)(2). At
sentencing, the district court applied a sixteen-level upward
adjustment based on Duberney’s prior conviction for a felony drug
trafficking offense under the Travel Act. Duberney objected
arguing that the court should only look at the elements of the
prior offense and not the underlying conduct. The district court
denied Duberney’s objection and subsequently sentenced him to
fifty-six months in prison and three years of supervised release.
Duberney timely appealed his sentence to this Court.
BACKGROUND
Duberney pleaded guilty to one count of illegal reentry into
the United States. The Pre-Sentencing Report (“PSR”) assigned
Duberney a base offense level of eight in accordance with U.S.S.G.
§ 2L1.2(a). The PSR also assigned Duberney a 16-level upward
adjustment to his offense level pursuant to § 2L1.2(b)(1)(A)(i),
which provides, “If the defendant previously was deported, or
unlawfully remained in the United States, after . . . a conviction
for a felony that is . . . a drug trafficking offense for which the
sentence imposed exceeded 13 months, . . . increase by 16 levels.”
Following an adjustment for acceptance of responsibility,
Duberney’s total offense level was 21, and he was in criminal
history category IV. His Guidelines sentencing range was 57-71
months in prison and a two to three year term of supervised
release.1
Duberney’s prior conviction involved a violation of the Travel
Act, 18 U.S.C. § 1952, which prohibits interstate travel and
communication in aid of racketeering. In the prior conviction,
Duberney had been part of a conspiracy to transport marijuana and
cocaine across state lines. Though Duberney was originally
indicted on a charge of conspiracy to possess marijuana and cocaine
with intent to distribute, he was permitted to plead guilty to a
violation of the Travel Act. The indictment in this prior
conviction charged Duberney with interstate transportation in aid
of racketeering “with the intent to promote cocaine and marijuana
trafficking.” Duberney was sentenced to 37 months’ imprisonment
1
At sentencing, the District Court gave Duberney a one month
credit for time already served in custody of the INS, which
explains his actual sentence which is 1 month below the guideline
range.
2
for this prior offense.
In the present case’s sentencing hearing, Duberney objected to
the 16-level upward adjustment. Though he did not dispute the
“underlying conduct” of his prior conviction involved drug
trafficking, Duberney argued that under this Circuit’s
“categorical” approach to classifying offenses for Guidelines
purposes, his prior § 1952 conviction did not qualify as a drug
trafficking offense under § 2L1.2(b)(1)(A)(i). Duberney reasoned
that because the Travel Act targets interstate or foreign travel
“in aid of” several forms of “unlawful activity” - many of which do
not involve drugs or drug trafficking - a Travel Act violation is
not a “drug trafficking offense” as defined in the Sentencing
Guidelines. He contended that he thus should not have received the
16-level upward adjustment.
The district court denied Duberney’s objection. Though the
district court acknowledged that a person could be convicted under
§ 1952 for unlawful activities other than drug trafficking, it
noted that the elements of a § 1952 offense are somewhat determined
by the type of racketeering enterprise being aided. The district
court therefore concluded that because “the charge itself reflects
a drug trafficking offense,” his Travel Act conviction warranted
the 16-level increase under § 2L1.2(b)(1)(A). The district court
sentenced Duberney to fifty-six months in prison and three years of
supervised release. Duberney timely appealed his sentence to this
Court.
DISCUSSION
Did the district court err in concluding that Duberney’s prior
conviction warranted a 16-level upward adjustment?
This Court will uphold a sentence unless it is imposed in
violation of law, is based on an erroneous application of the
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Guidelines, or unreasonably departs from the applicable guideline
range. United States v. Guadardo, 40 F.3d 102, 103 (5th Cir.
1994). The district court’s application of the Guidelines is
reviewed de novo, and its findings of fact are reviewed for clear
error. United States v. DeSantiago-Gonzalez, 207 F.3d 261, 263
(5th Cir. 2000). The 2001 Guidelines apply to the instant case
because Duberney was sentenced on June 17, 2002. United States v.
Kimler, 167 F.3d 889, 893 (5th Cir. 1999).
Duberney maintains on appeal that his § 1952 conviction is not
a drug trafficking offense under § 2L1.2(b)(1)(A)(i). Duberney
does not dispute that the underlying conduct in his § 1952
conviction did, in fact, involve the transportation of illegal
drugs. He argues, however, that the district court should have
taken a categorical approach to the classifying offense and that
his § 1952 conviction does not qualify as a drug trafficking crime
under such an approach because it is possible to commit a § 1952
offense that does not involve drugs. We are, therefore, left with
question of whether or not the district court erred, as a matter of
law, in looking to the conduct underlying Duberney’s prior § 1952
conviction in applying § 2L1.2(b)(1)(A)(i).
Duberney argues that under this Court’s decision in United
States v. Gracia-Cantu, 302 F.3d 308 (5th Cir. 2002), we should
employ a “categorical approach” to classify prior offenses for the
purposes of § 2L1.2. In Gracia-Cantu, this Court held that the
offense of “injury to a child” is not properly classified as a
“crime of violence” for the purposes of § 2L1.2(b)(1)(A)2 because
2
The commentary to § 2L1.2 provides that an “aggravated
felony” be defined under 8 U.S.C. § 1101(a)(43). Under that
section, an aggravated felony includes a “crime of violence” as
4
the focus of that provision should be on the offense itself as
defined under state law and not by facts underlying the conviction.
Under Texas law, “injury to a child” encompasses both crimes of
omission as well as violent crimes. Id. at 311-12. This Court
concluded, therefore, that, regardless of the underlying facts, the
offense of “injury to a child,” by its nature, is not a crime of
violence under §2L1.2, because it could be premised on an omission
rather than on an overt violent act. Id. at 312-13. Duberney
argues that the “categorical approach” this Court used in
interpreting § 2L1.2(b)(1)(A)(ii) should be extended to
2L1.2(b)(1)(A)(i).
However, Duberney’s reliance on Gracia-Cantu is misplaced.
Gracia-Cantu was premised upon this Court’s decision in United
States v. Chapa-Garza, 243 F.3d 921 (5th Cir. 2001). Gracia-Cantu,
302 F.3d at 312. In Chapa-Garza, this Court noted that 18 U.S.C.
§ 16 (b) defines a “‘crime of violence” as “any other offense that
is a felony and that, by its nature, involves a substantial risk
that physical force against the person or property of another may
be used in the course of committing the offense.’” Id. at 923
(quoting 18 U.S.C. §16 (b)). The Court then concluded that:
the words “by its nature” require us to employ a
categorical approach when determining whether an offense
is a crime of violence. This means that the particular
facts of the defendant's prior conviction do not matter,
e.g. whether the defendant actually did use force against
the person or property of another to commit the offense.
The proper inquiry is whether a particular defined
offense, in the abstract, is a crime of violence under 18
U.S.C. § 16(b).
Chapa-Garza, 243 F.3d at 924 (citation omitted). Therefore, in
defined under 18 U.S.C. § 16. The Court therefore analyzed what
constitutes a “crime of violence” under § 16.
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both Gracia-Cantu and Chapa-Garza, it was the use of the words “by
its nature” that invoked a categorical approach by this Court. See
also United States v. DeSantiago-Gonzalez, 207 F.3d 261, 264 (5th
Cir. 2000).
Duberney’s enhancement was not due to a “crime of violence”
offense but for a drug trafficking offense under §
2L1.2(b)(1)(A)(i). The commentary to the Guidelines defines a drug
trafficking offense broadly as “an offense under federal, state, or
local law that prohibits the manufacture, import, export,
distribution, or dispensing of a controlled substance (or a
counterfeit substance) or the possession of a controlled substance
(or counterfeit substance) with intent to manufacture, import,
export, distribute, or dispense.” U.S.S.G. § 2L1.2, cmt. app. n.
1(B)(iii). No where does this definition use the words “by its
nature” so as to invoke a categorical approach. We therefore
decline to extend the Gracia-Cantu categorical approach to §
2L1.2(b)(1)(A)(i).
Furthermore, we find that Duberney’s prior Travel Act
conviction may be classified as a “drug trafficking offense”
without elaborate consideration of his underlying conduct. As
noted above, in Duberney’s prior conviction, he was charged with,
and pleaded guilty to, “interstate transportation in aid of
racketeering with the intent to promote cocaine and marijuana
trafficking.” The district court had only to look at the charging
indictment to find that the prior Travel Act violation was one
involving drug trafficking.
In Taylor v. United States, the Supreme Court stated that such
an approach is acceptable in a “narrow range of cases.” 495 U.S.
575, 602 (1990). The Supreme Court went on to explain when such a
6
situation might arise:
For example, in a State whose burglary statutes include
entry of an automobile as well as a building, if the
indictment or information and jury instructions show that
the defendant was charged only with a burglary of a
building, and that the jury necessarily had to find an
entry of a building to convict, then the Government
should be allowed to use the conviction for enhancement.
Id. We acknowledged Taylor in United States v. Allen, stating:
We read Taylor as allowing the sentencing court to
consider only the statutory definition of the offense,
the charging paper and jury instructions. Any different
rule raises the possibility of mini-trials to determine
the facts underlying a prior offense. Such an “elaborate
factfinding process regarding the defendant’s prior
offenses,” is specifically barred by Taylor.
282 F.3d 339, 343 (5th Cir. 2002)(citation omitted). From Taylor
and Allen, we therefore conclude that in the case of a statute such
as the one at issue here, where the underlying conduct may include
conduct that would make the defendant eligible for an enhancement,
the district court does not err when it looks to the underlying
indictment for guidance.3 Just as a district court could look to
the indictment to see if a burglary was one that involved a
building rather than an automobile, it can also look to the
indictment to see if a Travel Act violation involved drug
trafficking. A jury was required to find drug trafficking in order
to convict Duberney of the Travel Act violation, and there is no
danger of the district court undertaking an elaborate fact-finding
process in order to determine the nature of the defendant’s
underlying offense.
3
This is in no way meant to alter this Court’s decisions in
Chapa-Garza and Gracia-Cantu, in which we have already held that
the precise language involved in the definition of a “crime of
violence” required a categorical approach.
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CONCLUSION
Having carefully reviewed the record of this case and the
parties’ respective briefing and for the reasons set forth above,
we conclude that the district court did not err in concluding that
Duberney’s prior conviction justified a 16-level enhancement under
U.S.S.G. § 2L1.2. We therefore AFFIRM the district court’s
decision.
AFFIRMED.
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