United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
For the Fifth Circuit April 5, 2005
Charles R. Fulbruge III
Clerk
No. 03-41742
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
ARTURO GUTIERREZ-RAMIREZ, a/k/a RODRIGO VACA,
Defendant-Appellant.
Appeal from the United States District Court
For the Southern District of Texas
Before DAVIS, SMITH and DeMOSS, Circuit Judges.
W. EUGENE DAVIS, Circuit Judge:
Defendant Arturo Gutierrez-Ramirez (Gutierrez-Ramirez)
challenges a 16-level enhancement of his sentence based on a prior
conviction for a “drug trafficking offense” as authorized by §
2L1.2 (b)(1)(A)(i) of the United States Sentencing Guidelines
(“Guidelines”). We conclude that the district court erred in using
a California abstract of judgment to determine whether the
defendant’s prior California conviction qualified as a “drug
trafficking offense.” We therefore VACATE Gutierrez-Ramirez’s
sentence and REMAND for resentencing in accordance with this
opinion and the Supreme Court’s recent opinion in United States v.
Booker, 125 S.Ct. 738 (2005).
I.
Gutierrez-Ramirez pleaded 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
United States Sentencing Guidelines (“Guidelines”),2 and a 16-
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.
2
The district court sentenced Gutierrez-Ramirez using the 2002
edition of the Guidelines with the April 30, 2003, amendments; all
references to the Guidelines contained herein are from this
version.
2
level enhancement for a past conviction of a “drug trafficking
offense for which the sentence imposed exceeded 13 months”
pursuant to § 2L1.2 (b)(1)(A)(i) of the Guidelines.3 The
recommended enhancement was based on Gutierrez-Ramirez’s 1995
California conviction for violating CAL. HEALTH & SAFETY CODE §
11352 (a) (Ҥ 11352 conviction").4 The PSR also recommended a
two-level reduction for acceptance of responsibility resulting in
a total offense level of 22.
Gutierrez-Ramirez objected to the PSR’s characterization of
his § 11352 conviction as a “drug trafficking offense.” His
written objection stated:
“[W]ithout seeing the indictment, and knowing the
precise statute under which the convictions were
obtained (as well as the elements of the offenses of
conviction), it is urged that same are no more than
aggravated felonies, triggering an eight-level upward
adjustment.” R. 1, 19.(Parenthetical in original).
3
Part (1)(B)(iii) of the Commentary to § 2L1.2 of the Guidelines
defines “drug trafficking offense” in pertinent part as follows:
“Drug trafficking offense” means an offense under
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.
4
CAL. HEALTH & SAFETY CODE § 11352 (a) (West 1996) provides in
pertinent part:
[E]very 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 or transport [a controlled substance of
the types listed], shall be punished by imprisonment in
the state prison for three, four, or five years.
3
At the sentencing hearing, Gutierrez-Ramirez’s attorney
again objected to the 16-level enhancement, this time arguing:
“I had filed an objection on the basis that the
statute under which [Gutierrez-Ramirez] was convicted
permits a conviction for transportation of a controlled
substance, and it is our position that merely
transporting a controlled substance would not be a drug
trafficking offense...” R. 3, 4.
In response, the district court asked the government to provide a
copy of the indictment or judgment for the § 11352 conviction.
The government was able to locate neither, but the Probation
Officer produced the abstract of judgment, which the district
court accepted. Because the abstract identified the § 11352
conviction as “sell cocaine,” the district court concluded that
Gutierrez-Ramirez’s past conviction was not based on the much
broader “transportation section” of § 11352, and thus qualified
as a “drug trafficking offense.”
After deducting another point for acceptance of
responsibility, the district court determined that Gutierrez-
Ramirez’s total offense level was 21. His criminal history
category of V resulted in a Guidelines sentence range of 70 to 87
months.5 Gutierrez-Ramirez was sentenced to 70 months’
5
We read Gutierrez-Ramirez’s brief as conceding that, instead of
the 16-level enhancement, he should have received a 12-level
enhancement for a prior “drug trafficking offense for which the
sentence imposed was 13 months or less” under § 2L1.2 (b)(1)(B) for
his previous conviction for violating OR. REV. STAT. § 475.992.
Appellant’s Brief at 12. With this enhancement, his total offense
level would have been 17 and his Guidelines sentence range would
have been 46 to 57 months.
4
imprisonment, and took this appeal.
II.
A.
Gutierrez-Ramirez argues first that the district court
improperly used an abstract of judgment to decide that his §
11352 conviction qualified as a “drug trafficking offense.” The
government argues that, because Gutierrez-Ramirez filed a general
objection to the enhancement, and did not specifically object to
the district court’s use of the abstract of judgment, we should
review this issue for plain error. We disagree.
The purpose of requiring a defendant to object to preserve
an issue for review is to encourage defendants to call the
court’s attention to the potential error “in such a manner so
that the district court may correct itself and thus, obviate the
need for [appellate] review.” United States v. Rodriguez, 15
F.3d 408, 414 (5th Cir. 1994) (quoting United States v. Bullard,
13 F.3d 154, 156 (5th Cir. 1994)). As discussed above,
Gutierrez-Ramirez filed written objections to the PSR in which he
argued that, without referring to the indictment, it was
impossible to say whether his § 11352 conviction qualified as a
“drug trafficking offense.” He also renewed his objection by
orally objecting at the sentencing hearing, and argued that §
11352 was too broad to qualify as a “drug trafficking offense.”
The transcript of the sentencing hearing reflects that the
district court considered the propriety of using the abstract of
5
judgment.6 We conclude that appellant’s objection was specific
enough to preserve his challenge to the enhancement before this
court. Therefore, we review the district court’s enhancement de
novo. United States v. Calderon-Pena, 383 F.3d 254, 256 (5th
Cir. 2004) (en banc), cert. denied, 125 S. Ct. 932(2005).
B.
Gutierrez-Ramirez argues next that, using the categorical
approach this court employed in Calderon-Pena, his 1995
conviction for violating § 11352 does not qualify as a “drug
trafficking offense” under the Guidelines.7 The government does
6
The transcript of the sentencing hearing shows that the district
court considered the propriety of using the abstract:
THE COURT: This is an abstract of judgment. It’s not even
the actual judgment form. So this isn’t even
really - the judgment itself may actually have -
and it says ‘sell cocaine’. The crime here is
sell cocaine. Is this the judgment you’re
talking about?
DEFENSE: I haven’t seen it, Your Honor, but it -
THE COURT: Well, it says, ‘sells cocaine’. I mean, so,
therefore, the transportation section doesn’t
even come into being...[a]nd so, therefore, that
objection would have to be overruled.
R. 3, 5-6.
7
The “categorical approach” finds its origins in United States
v. Taylor, 495 U.S. 575 (1990). Under this approach, we examine
the elements of the prior offense, rather than the facts underlying
the conviction, to determine whether the prior offense meets the
enhancement definition provided in the Guidelines. 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). Thus, our focus is on the statute of conviction, not
the underlying conduct of the prior offense. See Calderon-Pena,
6
not seriously challenge that, if the categorical approach applies
in this case, § 11352 can be violated by conduct that would not
constitute a “drug trafficking offense.” The government argues
that under United States v. Rodriguez-Duberney, 326 F.3d 613 (5th
Cir. 2003), we need not use the categorical approach to review
the propriety of a Guidelines enhancement for a prior “drug
trafficking offense,” but rather may look to sources such as the
PSR for the underlying facts of the prior conviction.
In Rodriguez-Duberney, the defendant argued that his
previous conviction for violating the Travel Act (18 U.S.C. §
1952) was not a “drug trafficking offense” in light of United
States v. Gracia-Cantu, 302 F.3d 308 (5th Cir. 2002) and United
States v. Chapa-Garza, 243 F.3d 921 (5th Cir. 2001), two cases
using the categorical approach. Id. at 616. The court
distinguished Gracia-Cantu and Chapa-Garza on the grounds that
the Guidelines definition of “crime of violence,” at issue in
those cases, included the words “by its nature,” and this phrase
required the courts in Gracia-Cantu and Chapa-Garza to use the
categorical approach.8 Id. Thus, because the Guidelines
383 F.3d at 257. 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.
8
The current definition of “crime of violence” found in the
Commentary to § 2L1.2 of the Guidelines no longer contains the
phrase “by its nature” that was found to trigger the categorical
approach in Gracia-Cantu and Chapa-Garza. The definition of “crime
of violence” now includes the phrase “as an element,” which we have
7
definition of “drug trafficking offense” does not include the “by
its nature” language, the panel in Rodriguez-Duberney declined to
follow the categorical approach. Id. at 617.
Although Rodriguez-Duberney did decline to use the
categorical approach and look only to the elements of the offense
of the prior conviction, the court did not authorize reference to
a source other than the indictment to determine whether the prior
conviction could be classified as a “drug trafficking offense.”
We therefore do not read Rodriguez-Duberney to give the district
court carte blanche authority to consider sources beyond the
indictment and jury instructions to determine whether defendant’s
prior conviction qualifies for a sentencing enhancement under the
Guidelines.9
The government next argues that, while our caselaw may
forbid considering underlying facts in the PSR to determine
whether the prior offense qualifies as a “drug trafficking
offense,” it does not prohibit a sentencing court from
considering information in an abstract of judgment. We generally
have interpreted Taylor to allow courts to look to limited parts
of the record, such as the indictment and jury instructions, to
held also triggers the categorical approach. See United States v.
Vargas-Duran, 356 F.3d 598, 605 (5th Cir. 2003) (en banc), cert.
denied, 541 U.S. 965 (2004).
9
Rodriguez-Duberney quoted a passage from Taylor permitting
consideration of both the indictment and jury instructions to
determine whether a prior conviction qualifies for a sentence
enhancement. 326 F.3d at 617.
8
determine whether a defendant was convicted under part of a
statute that meets the enhancement definition.10 In United
States v. Navidad-Marcos, 367 F.3d 903 (9th Cir. 2004), the Ninth
Circuit carefully considered whether to include California
abstracts of judgment as a source to identify the defendant’s
conduct in a prior conviction, and we find its opinion persuasive
in this case.
In Navidad-Marcos, the defendant argued that his prior
conviction for violating CAL. HEALTH AND SAFETY CODE § 11379 (a) did
not qualify as a “drug trafficking offense” under the Guidelines.
Id. at 906. The district court agreed that § 11379 could be
violated by conduct that would not qualify as “drug trafficking.”
Id. The sentencing judge then looked to the abstract of judgment
for the § 11379 conviction, which identified the offense as
“Transport/sell cont. sub.” Id. Based on this, the district
court determined that the defendant had been convicted under a
section of § 11379 that met the definition of “drug trafficking.”
Id.
The Ninth Circuit reversed. The panel agreed that the
defendant’s prior conviction did not “facially qualify” for the
10
See Calderon-Pena, 383 F.3d at 258 (courts may look to
indictment consistent with Taylor to determine whether a prior
conviction qualifies as a “crime of violence” under the Guidelines)
and United States v. Allen, 282 F.3d 339, 342-343 (5th Cir. 2002)
(courts may consider charging papers and jury instructions to
determine whether a prior offense qualifies as a “serious drug
offense” for purposes of 18 U.S.C. § 924 (e)(2)(A), also known as
the Armed Career Criminal Act).
9
16-level enhancement, but held that because the abstract of
judgment was not sufficient to “unequivocally establish” that the
defendant actually sold illegal drugs, the district court erred
in relying exclusively on the abstract to support the
enhancement. Id. at 907. Under California law, the court
stated, “an abstract of judgment is not the judgment of
conviction; it does not control if different from the trial
court’s oral judgment and may not add to or modify the judgment
it purports to digest or summarize.” Id. at 908. (quoting People
v. Mitchell, 26 P.3d 1040, 1042 (Cal. 2001)). In addition, the
court explained that “[p]reparation of the abstract is a
clerical, not a judicial function.” Id. at 909. (citing People
v. Rodriguez, 152 Cal. App. 3d 289, 299 (Cal. Ct. App. 1984)).
In discussing why the portion of the abstract identifying the
charged offense is not reliable, the court stated:
“The form simply calls for the identification of
the statute of conviction and the crime, and provides a
very small space in which to type the description. It
does not contain information as to the criminal acts to
which the defendant unequivocally admitted in a plea
colloquy before the court...[i]t is equally plausible,
if not more probable, that the abbreviation in the
[portion of the abstract identifing the offense] merely
summarized the title of the statute of conviction
rather than – as the government would have us presume –
a conscious judicial narrowing of the charging
document.” Id.
Considering these shortcomings, Navidad-Marcos found that
the abstract of judgment “fail[ed] to satisfy the ‘rigorous
standard’ required by Taylor’s modified categorical approach.”
10
Id. Thus, the panel held that the district court erred in
looking to the abstract of judgment alone to determine whether
the enhancement was proper, and the case was remanded for
resentencing. Id.
Similarly, in this case, the district court based its
conclusion that Gutierrez-Ramirez’s § 11352 conviction qualified
as a “drug trafficking offense” solely on the abstract of
judgment. As stated above, the record shows that the district
court relied on the portion of the abstract that identified
Gutierrez-Ramirez’s § 11352 offense as “sell cocaine.” From
Navidad-Marcos’ cogent discussion of California abstracts of
judgment, we conclude this is not a source upon which we can rely
to conclude that this short phrase manifests a “conscious
judicial narrowing of the charging document” rather than a
shorthand abbreviation of the statute of conviction. We
therefore agree with the Ninth Circuit that courts cannot
exclusively rely on such shorthand descriptions to justify
sentence enhancements under the Guidelines.11
11
The government argues that there is a conflict in the Ninth
Circuit over whether a district court may rely solely on an
abstract of judgment to decide whether a prior conviction meets a
particular enhancement definition under the Guidelines. However,
the case cited by the government, United States v. Velasco-Medina, 305
F.3d 839 (9th Cir. 2002), does not conflict with Navidad-Marcos.
In Velasco-Medina, the court held that the district court did not
err in looking to the abstract of judgment, in combination with the
charging instrument, to determine whether the enhancement was
justified under the Guidelines. 305 F.3d at 852. Thus, Velasco-
Medina did not address the propriety of using the abstract of
judgment alone, and does not conflict with Navidad-Marcos.
11
The government next argues that the recent Supreme Court
opinion in Shepard v. United States, __ S.Ct. __, 2005 WL 516494
(2005) supports its argument that the district court’s use of the
abstract of judgment was proper in this case. In Shepard, a
defendant pleaded guilty to being a felon in possession of a
firearm in violation of 18 U.S.C. § 924 (g)(1). He objected to
having his sentence increased from the 37-month maximum under the
statute for a firearm offense to a 15-year minimum for violating
the Armed Career Criminal Act (“ACCA”),12 which is triggered when
an offender convicted under § 924 (g)(1) has three previous
convictions for “violent felonies.” Id. at *3. The government
argued that, under Taylor, the court is not limited to using the
indictment alone, but is allowed to look to police reports and
complaint applications to determine whether the prior convictions
qualified as “violent felonies” under the ACCA. Id. at *6. The
First Circuit Court of Appeals agreed, finding that because the
defendant did not seriously challenge the accuracy of the facts
contained in the reports, they were “sufficiently reliable” to
assess whether the prior convictions qualified as “violent
felonies.” Id. at *4.
The Supreme Court reversed. The Court concluded that in
determining whether a previous conviction qualifies as a “violent
felony” so as to trigger an enhancement, a court is “generally
12
18 U.S.C. § 924 (e) (2004).
12
limited to examining the statutory definition, charging document,
written plea agreement, transcript of plea colloquy, and any
explicit factual finding by the trial judge to which the
defendant assented.” Id. at *3. Such a limitation was
necessary, the Court stated, in order to remain faithful to
Taylor’s admonition for courts to refrain from engaging in
collateral trials. Id. at *7.
Shepard does not support the government’s argument for using
the abstract of judgment in this case. According to Navidad-
Marcos, the abstract of judgment is generated by the court’s
clerical staff, so it is not an “explicit factual finding by the
trial judge to which the defendant assented,” which the court may
consider under Shepard. Additionally, considering the low level
of reliability associated with abstracts of judgment in
California, we are satisfied they should not be added to the list
of documents Shepard authorizes the sentencing judge to consult.
We conclude therefore that the district court erred in relying
exclusively on the abstract of judgment to determine whether the
conviction under § 11352 was a “drug trafficking offense” in this
case.13
We authorized the government to supplement the record in
13
We recognize that in, United States v. Morales-Franco, 2003 WL
21635295 (5th Cir. 2003), an unpublished opinion, we permitted
reference to to the abstract of judgment. However, this case was
decided before Calderon-Pena and Shepard, and we therefore find it
to be unpersuasive.
13
this case with the indictment that preceded Gutierrez-Ramirez’s §
11352 conviction. Unfortunately, the indictment merely tracks
the language of the statute, and includes language relating to
conduct that would not qualify as a “drug trafficking offense”
under the Guidelines. The record contains no other evidence to
narrow Gutierrez-Ramirez’s § 11352 conviction to permit a
determination whether it qualifies as a “drug trafficking
offense.” As discussed above, the government does not challenge
the proposition that § 11352 could be violated by conduct that
would not qualify as a “drug trafficking offense” under the
Guidelines. Thus, the district court erred in imposing the 16-
level enhancement in this case.14
III.
Gutierrez-Ramirez also contends that the provisions of 8
U.S.C. § 1326 (b)(1) and (2) which provide that a defendant may
be sentenced to 10 or 20 years imprisonment for a prior “felony”
or “aggravated felony” are unconstitutional in light of Apprendi
v. New Jersey, 530 U.S. 446 (2000). As appellant recognizes,
14
At resentencing, the district court will use the Guidelines as
advisory consistent with Booker. See Booker, 125 S.Ct. at 757
(Breyer, J., Opinion of the Court in part). In “consulting the
Guidelines,” as Booker requires, the district court may consider
the 12-level enhancement based on a determination that the
defendant’s conviction for violating OR. REV. STAT. § 475.992
qualifies as a “drug trafficking offense for which the sentence
imposed was 13 months or less” under § 2L1.2 (b)(1)(B) of the
Guidelines. Id. at 764-765; See note 5, supra.
14
this issue is controlled by Almendarez-Torres v. United States,
523 U.S. 224, 235 (1998), in which the Supreme Court rejected
this argument.
IV.
For reasons stated above, we VACATE Gutierrez-Ramirez’s
sentence and REMAND for resentencing consistent with this opinion
and the Supreme Court’s recent opinion in United States v.
Booker, 125 S.Ct. 738 (2005).
VACATED and REMANDED.
15