United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT March 18, 2005
Charles R. Fulbruge III
Clerk
04-40238
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
Versus
HOWARD ALEXANDER GONZALEZ-BORJAS,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
7:03 CR-901-1
Before JOLLY, DAVIS and CLEMENT, Circuit Judges.
PER CURIAM:*
The defendant Howard Alexander Gonzalez-Borjas (“Gonzalez-
Borjas”) appeals his sentence of 46 months’ imprisonment with two
years’ supervised release for violating 8 U.S.C. § 1326(a) & (b).
For the following reasons, we VACATE Gonzalez-Borjas’ sentence
and REMAND for resentencing in accordance with this opinion and
United States v. Booker, 2005 WL 50108, __ S.Ct.__ (2005).
*
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this opinion should not be published and is not precedent except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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I.
On December 4, 2003, Gonzalez-Borjas pled guilty to the
offense of illegal re-entry into the United States after
deportation in violation of 8 U.S.C. § 1326(a) & (b).1 The
presentencing report (“PSR”) recommended a base offense level of
8 pursuant to § 2L1.2 of the Sentencing Guidelines, and a 12-
level increase for a past conviction for a “felony drug
trafficking offense,” pursuant to § 2L1.2(b)(1)(B). This
recommended enhancement was based on Gonzalez-Borjas’ two prior
convictions for drug offenses in California. The PSR also
recommended a two-level reduction for acceptance of
responsibility resulting in a total offense level of 18.
1
8 U.S.C. 1326 provides in pertinent part:
(a)In general
Subject to subsection (b) of this section,
any alien who--
(1)has been denied admission, excluded,
deported, or removed or has departed the United States
while an order of exclusion, deportation, or removal is
outstanding, and thereafter
(2)enters, attempts to enter, or is at any
time found in, the United States, unless...the Attorney
General has expressly consented to the alien’s
reapplying for admission...
shall be fined under Title 18, or imprisoned not more
than 10 years, or both;
(b) Criminal penalties for reentry of certain
removed aliens
Notwithstanding subsection (a)of this
section, in the case of any alien described in such
subsection---
(2)whose removal was subsequent to a
conviction for the commission of an aggravated felony,
such alien shall be fined under such Title, imprisoned
not more than 20 years, or both.
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The district court adopted most of the findings of the PSR,
including the characterization of Gonzalez-Borjas’ state drug
offenses as “felony drug trafficking offenses.” The district
court reduced Gonzalez-Borjas’ offense level by an additional
point for acceptance of responsibility, resulting in a total
offense level of 17. Based on the total offense level of 17 and
the recommended criminal history category of V, Gonzalez-Borjas’
sentencing range was 46-57 months. The district court sentenced
Gonzalez-Borjas to 46 months imprisonment, and he took this
appeal.
II.
Gonzalez-Borjas appeals his sentence on the ground that the
district court improperly classified his two prior drug
convictions as “felony drug trafficking offenses” and thus
improperly enhanced his sentence. Because Gonzalez-Borjas raises
this argument for the first time on appeal, we review the
district court’s enhancement for plain error.2 We find plain
error only if (1)there is an error; (2)the error was clear and
obvious; (3)the error affected the defendant’s substantial
rights; and (4)the error seriously affects the fairness,
integrity, or public reputation of the judicial proceedings.3
2
See United States v. Garcia-Cantu, 302 F.3d 308, 310 (5th
Cir. 2002)(citing United States v. Calverley, 37 F.3d 160, 162
(5th Cir. 1994)(en banc)).
3
United States v. Miranda, 248 F.3d 434, 443 (5th Cir.
2001)(quoting United States v. Vasquez, 216 F.3d 456, 459 (5th
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To determine whether a prior state conviction can be used to
enhance a sentence, we have used a categorical approach, in which
we examine the elements of the prior offense, rather than the
facts underlying the conviction, to determine whether the prior
offense meets the definition provided in the sentencing
guidelines.4 Thus, our focus is on the statute of conviction,
not the underlying conduct of the prior offense.5 If the statute
criminalizes conduct that does not fall within the enhancement
definition provided in the guidelines, the prior offense cannot
be used to enhance the defendant’s sentence.
Under § 2L1.2(b)(1)(B), the sentencing guidelines section
applicable to a conviction for illegal re-entry, the offense
level is increased by 12 if the defendant’s prior deportation
followed a conviction for a “felony drug trafficking offense.”6
The commentary on § 2L1.2 of the sentencing guidelines defines
“drug trafficking offense” as follows:
“Drug trafficking offense” means an offense under
Cir. 2000)).
4
See United States v. Rodriguez-Rodriguez, 323 F.3d 317,
318-319 (5th Cir. 2003); United States v. Chapa-Garza, 243 F.3d
921, 924 (5th Cir. 2001)(using categorical approach for prior
aggravated felony conviction); Taylor v. United States, 495 U.S.
575 (1990)(applying categorical approach in determining whether
conviction constituted burglary for purposes of sentencing
enhancement in 18 U.S.C. § 924(e)).
5
See United States v. Calderon-Pena, 383 F.3d 254, 257 (5th
Cir. 2004)(en banc).
6
U.S. Sentencing Guidelines Manual § 2L1.2(b)(1)(B)(2004).
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federal, state, or local law that prohibits the
manufacture, import, export, distribution, or
dispensing of a controlled substance...or the
possession of a controlled substance...with intent to
manufacture, import, export, distribute, or dispense.
The central issue in this appeal is whether Gonzalez-Borjas’ two
state drug offenses amount to “drug trafficking offenses” under
this definition.
In 1996, Gonzalez-Borjas was convicted of violating
California Health and Safety Code § 11352(a), which provides:
Except as otherwise provided in this division, every
person who transports, imports into this state, sells,
furnishes, administers, or gives away, or offers to
transport, import into this state, sell, furnish,
administer, or give away, or attempts to import into
this state [a controlled substance of the types
listed], shall be punished by imprisonment in the state
prison for three, four, or five years.7
Gonzalez-Borjas argues that this statute encompasses acts that
are not included in the definition of “drug trafficking offense”
under the sentencing guidelines. We agree.
Section 11352 can be violated by transporting a controlled
substance for personal use, offering to transport, sell, furnish,
administer, or give away a controlled substance, and solicitation
of the prohibited acts.8 So, unlike the sentencing guidelines’
definition of “drug trafficking offense,” the state need not
7
CAL. HEALTH & SAFETY CODE § 11352 (West 1996).
8
See People v. Carter, 166 Cal. App. 3d 994, 995 (Cal. Ct.
App. 1985)(Section 11352 does not require a specific intent to
transport contraband for the purpose of sale or distribution,
rather than for personal use.)
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prove that the individual sought to transport the controlled
substance with intent to manufacture, import, export, distribute,
or dispense, in order to convict under § 11352.
Our conclusion is further supported by the Ninth Circuit’s
decision in United States v. Kovac, 367 F.3d 1116, 1119 (9th Cir.
2004), which held that a conviction under § 11352 did not qualify
as a “controlled substance offense” under § 4B1.2(a) to merit an
enhancement as a “career offender” under § 4B1.1. The
definitions of “controlled substance offense” and “drug
trafficking offense” are identical for our purposes under the
guidelines,9 which supports our conclusion that a conviction
under § 11352 does not qualify as a “drug trafficking offense” to
enhance a defendant’s sentence.
The district court also relied on a second conviction for
the 12-level enhancement. In 2001, Gonzalez-Borjas was convicted
9
It appears that the only difference between the two
definitions is that “controlled substance offense” provides that
the offense must be punishable by a term of imprisonment of at
least one year, a requirement not found in the definition of
“drug trafficking offense.” This difference was not important in
Kovac, and therefore does not undercut its persuasiveness.
Section 4B1.2 of the United States Sentencing Guidelines defines
“controlled substance offense” as follows:
The term “controlled substance offense” means an
offense under federal or state law, punishable by
imprisonment for a term exceeding one year, that
prohibits the manufacture, import, export,
distribution, or dispensing of a controlled
substance...or the possession of a controlled
substance...with intent to manufacture, import, export,
distribute, or dispense.
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of being an accessory to a violation of § 11352, which is a
violation of California Penal Code § 32.10
For reasons stated above, the commission of the substantive
violation of § 11352 does not qualify as a “drug trafficking
offense” under the guidelines. Thus, a conviction as an
accessory to such an offense would not qualify. Because we find
that the district court erred in using these convictions to
enhance Gonzalez-Borjas’ sentence, we must now decide if the 12-
level enhancement meets the remaining elements of plain error.
Our precedent dictates that it does.
In United States v. Gracia-Cantu, 302 F.3d 308, 313 (5th
Cir. 2002), the defendant challenged an enhancement of a sentence
of illegally re-entering the United States. We held that an error
that dramatically increased “the recommended imprisonment
range...affected [the defendant’s] substantial rights” and
amounted to plain error.11 Accordingly, we vacated the
defendant’s sentence, which had been improperly increased from a
10
CAL. PEN. CODE ANN. § 32 provides:
Every person who, after a felony has been committed,
harbors, conceals, or aids a principal in such a
felony, with the intent that such principal may avoid,
or escape from arrest, trial, conviction or punishment,
having knowledge that said principal has committed such
felony or has been charged with such felony or has been
convicted thereof, is an accessory to such felony.
11
Id.
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range of 21-27 months to a sentence of 70 months imprisonment.12
In this case, the base offense level for Gonzalez-Borjas was
8. Absent the 12-level enhancement for a “drug trafficking
offense,” he would have faced the possibility of either a 4-level
enhancement under § 2L1.2(b)(1)(D)13 or an 8-level enhancement
under §2L1.2(b)(1)(C).14 In either case, taking into account a
two-level reduction for acceptance of responsibility, his total
offense level would fall between 10 and 14.15 Coupled with a
criminal history category of V, he would have faced either a
sentencing range of 21-27 months or 33-41 months.16
As in Gracia-Cantu, all of the elements of plain error are
satisfied in this case. Because the district court plainly erred
in imposing the 12-level enhancement, we VACATE the defendant’s
sentence and REMAND for resentencing in accordance with this
opinion and United States v. Booker, 2005 WL 50108, __ S.Ct.__
12
Id.
13
Section 2L1.2(b)(1)(D) instructs the court to increase the
base offense level by 4 levels for “a conviction for any other
felony.”
14
Section 2L1.2(b)(1)(C) instructs the court to increase the
base level offense by 8 levels for a conviction of an “aggravated
felony.”
15
Under § 3E1.1(b) of the sentencing guidelines, a defendant
is only eligible for a three-level deduction for acceptance of
responsibility if his offense level before deduction is at level
16 or greater.
16
U.S. Sentencing Guidelines Manual Ch.5, Pt.A (Sentencing
Table).
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(2005).
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