United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT March 7, 2007
Charles R. Fulbruge III
Clerk
No. 05-41221
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
JUAN GONZALES, also known as Jose Ventura-Ginez
Defendant - Appellant
Appeal from the United States District Court
for the Southern District of Texas, Laredo
No. 5:05-CR-163-1
Before KING, WIENER, and OWEN, Circuit Judges.
PER CURIAM:*
I. BACKGROUND
Defendant-appellant Juan Gonzales pleaded guilty to one
count of reentry of a removed alien in violation of 8 U.S.C.
§ 1326. The presentence report (PSR) recommended that Gonzales’s
base offense level of eight be increased by sixteen levels for a
prior drug-trafficking conviction in accordance with section
2L1.2(b)(1)(A)(i) of the United States Sentencing Guidelines
(“U.S.S.G.” or “Guidelines”). Gonzales’s prior conviction was
*
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this opinion should not be published and is not precedent except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.
for unlawful delivery of a controlled substance in violation of
section 481.112 of the Texas Health and Safety Code. The
district court adopted the PSR and, after making other
adjustments, arrived at a total offense level of 21 and a
criminal-history category of V, resulting in a Guidelines
sentencing range of 70 to 87 months’ imprisonment. The court
imposed a sentence of 76 months’ imprisonment and 3 years’
supervised release. Gonzales appeals his sentence.
II. DISCUSSION
Gonzales argues that the district court erred by applying
the 16-level enhancement because a Texas conviction for delivery
of a controlled substance is not a drug-trafficking offense under
U.S.S.G. § 2L1.2(b)(1). As Gonzales concedes, we review for
plain error since he did not properly preserve his argument
below. See United States v. Garza-Lopez, 410 F.3d 268, 272 (5th
Cir.), cert. denied, 126 S. Ct. 298 (2005).
Under plain-error review, we first inquire whether the
district court’s imposition of the enhancement was erroneous and,
if so, whether the error was plain (i.e., clear or obvious). Id.
We review the district court’s interpretation and application of
the Guidelines de novo. Id.
Under the categorical approach of United States v. Taylor,
495 U.S. 575, 602 (1990), the court “looks to the elements of the
prior offense, rather than to the facts underlying the
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conviction, when classifying a prior offense for sentence
enhancement purposes.” Garza-Lopez, 410 F.3d at 273. When
determining whether a prior offense is a drug-trafficking
offense, the court may also consider documents such as the
charging instrument and the jury instructions. Id. The court
may not, however, rely solely on the description of the offense
contained in the PSR. See id. at 274.
The statutory definition of delivery of a controlled
substance in Texas, as defined by section 481.112 of the Texas
Health and Safety Code, encompasses activity that does not fall
within section 2L1.2’s definition of “drug trafficking offense.”
Section 481.112 criminalizes the knowing manufacture, delivery,
or possession with intent to deliver a controlled substance. See
TEX. HEALTH & SAFETY CODE ANN. § 481.112(a) (Vernon 2003). “Deliver”
is defined, in relevant part, as “to transfer, actually or
constructively, to another a controlled substance,” and it
“includes offering to sell a controlled substance.” Id.
§ 481.002. We have previously stated that offering to sell a
controlled substance lies outside section 2L1.2’s definition of
“drug trafficking offense,” since section 2L1.2 “covers only the
manufacture, import, export, distribution, or dispensing of a
controlled substance (or possession with the intent to do any of
these things).”1 Garza-Lopez, 410 F.3d at 274. The district
1
The commentary to section 2L1.2 defines “drug trafficking
offense” as “an offense under federal, state, or local law that
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court therefore could not have concluded that Gonzales was
convicted of a drug-trafficking offense by looking at the
language of section 481.002. Cf. id. at 274-75 (concluding that
section 11379(a) of the California Health and Safety Code was
broader than section 2L1.2’s definition of “drug trafficking
offense” because section 11379(a) also criminalizes, inter alia,
offering to sell a controlled substance).
With the court’s permission, the parties have supplemented
the record in this case with the indictment and the jury
instructions pertaining to Gonzales’s prior conviction. But both
documents confirm that Gonzales’s conviction may have been for
activity that does not constitute a drug-trafficking offense,
i.e., offering to sell a controlled substance. The state
indictment alleged that Gonzales “did unlawfully, knowingly and
intentionally deliver, to-wit: actually transfer, constructively
transfer, and offer to sell a controlled substance.” And the
jury instructions state that Gonzales was accused of delivery of
a controlled substance and that the term “delivery” “includes
offering to sell a controlled substance.”
The government obliquely argues that we can be assured
Gonzales has been convicted of actual delivery and constructive
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. U.S.S.G. § 2L1.2 cmt.
n.1(B)(iv) (2004).
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delivery of a controlled substance since the indictment charged
actual delivery, constructive delivery, and offering to sell a
controlled substance in the conjunctive rather than in the
alternative. We perceive the government’s argument to be that
because the indictment alleged that Gonzales “did . . . actually
transfer, constructively transfer, and offer to sell a controlled
substance,” 2d Supp. R. 4 (emphasis added), when the jury
convicted Gonzales it found that he had actually transferred,
constructively transferred, and offered to sell a controlled
substance; since the jury found that Gonzales both actually and
constructively transferred a controlled substance, he committed a
drug-trafficking offense.
But as the government points out, “[a] disjunctive statute
may be pleaded conjunctively and proven disjunctively.” United
States v. Still, 102 F.3d 118, 124 (5th Cir. 1996); see also Cano
v. Texas, 3 S.W.3d 99, 106 (Tex. App.——Corpus Christi 1999, pet.
ref’d) (“The State may plead all three forms of delivery in the
indictment. Each of the theories may be submitted alternatively
in the jury charge.” (internal citation omitted)). That is, even
though the indictment charged Gonzales with actually
transferring, constructively transferring, and offering to sell a
controlled substance, the jury could have convicted him based on
an offer to sell alone. This is confirmed in the jury
instructions, which informed the jury that Gonzales was charged
with “actually transfer[ring], constructively transfer[ring], or
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offer[ing] to sell a controlled substance.” 2d Supp. R. 7
(emphasis added). Because the indictment and jury instructions
permitted the jury to convict Gonzales for behavior that does not
constitute a drug-trafficking offense (i.e., offering to sell a
controlled substance), it would be error to rely on these
documents to support the enhancement.
Moreover, the government’s argument that the court should
look to the common, ordinary, and contemporary understanding of
“delivery of a controlled substance” is without merit. We would
look to the generic, contemporary meaning of “drug trafficking
offense” if it were undefined, see United States v. Torres-Diaz,
438 F.3d 529, 536 (5th Cir.), cert. denied, 126 S. Ct. 1487
(2006), but “drug trafficking offense” is defined in the
commentary to section 2L1.2, see U.S.S.G. § 2L1.2 cmt.
n.1(B)(iv). There is no basis for the court to look to a
generic, contemporary meaning of “delivery of a controlled
substance”; instead, the court looks to the elements of the
offense as enumerated in section 481.112(a). See Torres-Diaz,
438 F.3d at 537.
Accordingly, the district court erred when it concluded that
Gonzales’s prior conviction was for a drug-trafficking offense.
We also conclude that this error is plain since Garza-Lopez makes
it clear that offering to sell a controlled substance does not
constitute a drug-trafficking offense. See 410 F.3d at 274.
We turn then to the question whether the error affected
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Gonzales’s substantial rights. “[W]e must determine ‘whether the
defendant can show a reasonable probability that, but for the
district court’s misapplication of the Guidelines, [he] would
have received a lesser sentence.” Id. at 275 (quoting United
States v. Villegas, 404 F.3d 355, 364 (5th Cir. 2005) (per
curiam)).
Gonzales has satisfied his burden on the third prong of
plain-error review. Absent the erroneous 16-level enhancement
under section 2L1.2(b)(1)(A)(i), Gonzales would have been subject
at most to an 8-level enhancement under section 2L1.2(b)(1)(C)
for a prior aggravated-felony conviction (although Gonzales does
not concede that this enhancement would have been proper). An
8-level enhancement would have resulted in a total offense level
of 13. With a criminal-history category of V, this would yield a
Guidelines sentencing range of 30 to 37 months’ imprisonment,
which is significantly lower than the 76-month sentence that
Gonzales received.2
2
United States v. Ochoa-Cruz, 442 F.3d 865 (5th Cir. 2006)
(per curiam) is distinguishable. In that case, we reviewed for
plain error a 16-level enhancement under section
2L1.2(b)(1)(A)(ii) for a prior crime-of-violence conviction. We
concluded that the district court plainly erred by relying solely
on the PSR’s description of the prior offense to support the
enhancement. Id. at 867. But we concluded that the defendant
had not demonstrated that the error affected his substantial
rights because he had failed even to argue, and thereby failed to
show, that the offenses for which he had previously been
convicted were not crimes of violence. Id. Gonzales has done so
here by demonstrating that section 481.112 encompasses activity
that does not constitute a drug-trafficking offense.
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Under the fourth prong of plain-error review, we may reverse
only if the error seriously affected the fairness, integrity, or
public reputation of judicial proceedings. United States v.
Olano, 507 U.S. 725, 732 (1993). We conclude that this prong is
satisfied here, as we have in other cases where “the district
court’s error clearly affected [the] sentence.” United States v.
Villegas, 404 F.3d 355, 365 (5th Cir. 2005) (per curiam); see
also Garza-Lopez, 410 F.3d at 275 (holding that erroneous
enhancement for prior drug-trafficking offense resulting in a
substantially different sentence affected the fairness of
judicial proceedings).3
III. CONCLUSION
For the foregoing reasons, we conclude that the district
court committed plain error and that Gonzales’s sentence must be
vacated.
SENTENCE VACATED; CASE REMANDED FOR RESENTENCING.
3
In order to preserve the argument for further review,
Gonzales also contends that his sentence should be limited to the
two-year statutory maximum in § 1326(a) rather than the 20-year
maximum in § 1326(b)(2). He asserts that § 1326(a) and
§ 1326(b)(2) create separate offenses and that the indictment did
not charge him with a § 1326(b)(2) offense because it did not
allege that he was removed subsequent to an aggravated-felony
conviction. But as he concedes, his argument is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224 (1998).
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