United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT May 30, 2007
Charles R. Fulbruge III
Clerk
No. 06-40975
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE LUIS LOZOYA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
(7:05-CR-301-ALL)
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Before SMITH, WIENER, and OWEN, Circuit Judges.
PER CURIAM:*
Defendant-Appellant Jose Luis Lozoya appeals the sentence
imposed following his guilty-plea conviction for importation of 11
grams of flunitrazepam, a controlled substance. He contends that
the district court plainly erred in sentencing him as a career
offender under U.S.S.G. § 4B1.1. He argues that his prior Texas
convictions for possession with intent to deliver a controlled
substance are not “controlled substance offenses” under U.S.S.G. §
4B1.2(b), because the Texas statute under which he was convicted
includes conduct (offering to sell) that does not fall within the
*
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this opinion should not be published and is not precedent except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.
definition of “controlled substance offense” in § 4B1.2(b). As
Lozoya did not raise this issue in the district court, review is
limited to plain error. See United States v. Green, 324 F.3d 375,
381 (5th Cir. 2003).
Lozoya was convicted of possession with intent to deliver a
controlled substance in violation of TEX. HEALTH & SAFETY CODE ANN.
§ 481.112. In the context of this statute, “[d]eliver means to
transfer, actually or constructively, to another a controlled
substance, counterfeit substance, or drug paraphernalia.” TEX.
HEALTH & SAFETY CODE ANN. § 481.002(8). Deliver is further defined as
“offering to sell a controlled substance, counterfeit substance, or
drug paraphernalia.” Id. This statute encompasses conduct (i.e.,
offering to sell a controlled substance) that is not included in
the definition of a controlled substance offense under § 4B1.2(b).
This conclusion is supported by United States v. Gonzales, ___ F.3d
___, No. 05-41221, 2007 WL 1063993 (5th Cir. Mar. 7, 2007), in
which we held that a prior Texas conviction for delivery of a
controlled substance under the same Texas statute was not a drug
trafficking offense under U.S.S.G. § 2L1.2, because the Texas
statute included conduct that did not constitute a drug trafficking
offense, viz., offering to sell a controlled substance. Id. at *2.
The definitions of a controlled substance offense under § 4B1.2(b)
and a drug trafficking offense under § 2L1.2 are virtually
identical. The district court thus erred in determining that
Lozoya was a career offender under § 4B1.1 based in part on his
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prior Texas convictions under TEX. HEALTH & SAFETY CODE ANN. § 481.112.
The error was clear under Gonzales and United States v. Garza-
Lopez, 410 F.3d 268, 273-74 (5th Cir.), cert. denied, 126 S. Ct.
298 (2005) (holding that offering to sell under a California
statute was not a drug trafficking offense under § 2L1.2).
Lozoya has shown that the error affected his substantial
rights as, without the erroneous enhancement under § 4B1.1, his
guidelines sentencing range would have been 12 to 18 months, much
less than his 151-month sentence. See Gonzales, 2007 WL 1063993 at
**2-3. As the error clearly affected his sentence, Lozoya has
shown that the error seriously affected the fairness, integrity, or
public reputation of the judicial proceedings. Id. at *3. We
therefore vacate Lozoya’s sentence and remand his case to the
district court for resentencing. As we vacate Lozoya’s sentence,
we need not address his additional argument that the sentence
imposed by the district court was unreasonable. See, e.g., United
States v. Akpan, 407 F.3d 360, 377 n.62 (5th Cir. 2005).
SENTENCE VACATED; REMANDED FOR RESENTENCING.
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