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. 05-50396
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
RAIMUNDO GONZALEZ-MERCADO, also known as Santiago Romero, also
known as Cristobal Conchi-Martinez
Defendant - Appellant
Appeal from the United States District Court
for the Western District of Texas, El Paso
No. 3:04-CR-2319
Before KING, WIENER, and OWEN, Circuit Judges.
PER CURIAM:*
I. BACKGROUND
Defendant-appellant Raimundo Gonzalez-Mercado pleaded guilty
to one count of reentry of a removed alien in violation of 8
U.S.C. § 1326. At sentencing, the district court calculated
Gonzalez-Mercado’s total offense level by, inter alia, imposing a
16-level enhancement for a prior drug-trafficking conviction in
accordance with section 2L1.2(b)(1)(A)(i) of the United States
*
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this opinion should not be published and is not precedent except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.
Sentencing Guidelines (“U.S.S.G.” or “Guidelines”). Gonzalez-
Mercado’s prior conviction was for the unlawful sale or
transportation of, or offer to sell, a controlled substance in
violation of section 11352(a) of the California Health and Safety
Code. After making other adjustments, the district court arrived
at a total offense level of 21 and a criminal-history category of
IV, resulting in a Guidelines sentencing range of 57 to 71
months’ imprisonment. But the court concluded that a criminal-
history category of IV overstated Gonzalez-Mercado’s propensity
to commit crime and that instead a criminal-history category of
II was more appropriate. The total offense level of 21 and the
criminal-history category of II yielded a Guidelines range of 41
to 51 months’ imprisonment. The court imposed a sentence of 41
months’ imprisonment and 3 years’ supervised release. Gonzalez-
Mercado appeals his sentence.
II. DISCUSSION
Gonzalez-Mercado argues that the district court erred by
applying the 16-level enhancement because a California conviction
for sale or transportation of, or offer to sell, a controlled
substance is not a drug-trafficking offense under U.S.S.G.
§ 2L1.2(b)(1). As Gonzalez-Mercado 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).
-2-
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
conviction, when classifying a prior offense for sentence
enhancement purposes.” Garza-Lopez, 410 F.3d at 273. The
government concedes that the district court could not have relied
solely on the language of section 11352(a) to conclude that
Gonzalez-Mercado’s prior conviction was for a drug-trafficking
offense since section 11352(a) criminalizes certain activity1
(e.g., transportation of a controlled substance for personal use)
that does not constitute a drug-trafficking offense under section
2L1.2. We agree. See United States v. Gutierrez-Ramirez, 405
F.3d 352, 359 (5th Cir.), cert. denied, 126 S. Ct. 217 (2005)
(holding that 16-level enhancement for prior conviction under
section 11352(a) was error where government conceded statute
“could be violated by conduct that would not qualify as a ‘drug
1
Section 11352(a) makes it a crime to “transport[],
import[] into this state, sell[], furnish[], administer[], or
give[] away, or offer[] to transport, import into this state,
sell, furnish, administer, or give away, or attempt[] to import
into this state or transport” a controlled substance. CAL. HEALTH
& SAFETY CODE § 11352(a).
-3-
trafficking offense’ under the Guidelines” and other evidence in
the record did not narrow the conviction to activity within the
definition of “drug trafficking offense”); see also Garza-Lopez,
410 F.3d at 274-75 (holding that a similar provision, section
11379(a) of the California Health and Safety Code, criminalizes
activity that is not a drug-trafficking offense).
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. at
273. With the court’s permission, the government has
supplemented the record in this case with certain documents
(e.g., the information) pertaining to Gonzalez-Mercado’s
California conviction. But now the government also concedes that
these documents do not bring Gonzalez-Mercado’s prior conviction
within the definition of “drug trafficking offense” in section
2L1.2.
Consequently, we conclude that the district court erred by
applying the 16-level enhancement for a prior drug-trafficking
conviction. We also conclude that the error was plain since
Garza-Lopez makes it clear that the California offense
encompasses activities outside the definition of “drug
trafficking offense.” See id. at 274.
We turn then to the question whether the error affected
Gonzalez-Mercado’s substantial rights. “[W]e must determine
‘whether the defendant can show a reasonable probability that,
-4-
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)).
Gonzalez-Mercado 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), Gonzalez-Mercado 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
Gonzalez-Mercado 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
IV, this would yield a Guidelines sentencing range of 24 to 30
months’ imprisonment, which is significantly lower than the 41-
month sentence that Gonzalez-Mercado received. And with a
criminal history category of II, this would yield a Guidelines
sentencing range of 15 to 21 months’ imprisonment, even farther
below the sentence imposed.
The government contends that Gonzalez-Mercado cannot
demonstrate that the outcome would have been different because
the district court already granted a significant downward
departure based on its determination that Gonzalez-Mercado’s
criminal-history category of IV overstated his propensity to
commit crime. We disagree. Even at a criminal history of
category IV, once the total offense level is adjusted to 13
-5-
Gonzalez-Mercado’s Guidelines range is 24 to 30 months, which is
at least 11 months less than the sentence imposed. There is
nothing in the record indicating that had the district court
correctly calculated the offense level, it would have upwardly
departed from the resulting sentencing range to achieve a 41-
month sentence.
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).2
III. CONCLUSION
For the foregoing reasons, we conclude that the district
2
In order to preserve the argument for further review,
Gonzalez-Mercado 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).
-6-
court committed plain error and that Gonzalez-Mercado’s sentence
must be vacated.
SENTENCE VACATED; CASE REMANDED FOR RESENTENCING.
-7-