IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 8, 2007
No. 06-40467
Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
ROBERTO MORALES-MARTINEZ
Defendant - Appellant
Appeal from the United States District Court
for the Southern District of Texas
Before HIGGINBOTHAM, GARZA, and BENAVIDES, Circuit Judges.
EMILIO M. GARZA, Circuit Judge:
The defendant, Roberto Morales-Martinez (“Morales-Martinez”), pleaded
guilty to illegal re-entry in violation of 8 U.S.C. § 1326(a). The district court
applied a sentencing enhancement after finding that Morales-Martinez has a
prior conviction for a drug trafficking offense; Morales-Martinez had previously
pleaded guilty to a state charge for delivery of cocaine. Morales-Martinez
challenges this enhancement, arguing that his guilty plea in the prior state court
conviction did not admit to the facts establishing a drug trafficking offense.
I
Morales-Martinez is a citizen of Mexico. In October 2005, agents of the
Bureau of Customs and Border Protection (“CBP”) encountered Morales-
No. 06-40467
Martinez as he walked north along a highway near a CBP inspection station.
Morales-Martinez identified himself as a Mexican national with no legal status
in the United States. The CBP agents then arrested him. During processing at
the CBP station, the agents found that, in 1993, Morales-Martinez had been
convicted of delivery of cocaine, a felony in violation of § 481.112 of the Texas
Health and Safety Code. The agents also learned that Morales-Martinez had
served twelve years of incarceration on this prior conviction, and that he was
deported after serving the sentence in March 2005.
During a re-arraignment hearing, Morales-Martinez was charged with and
pleaded guilty to illegal re-entry following deportation. 8 U.S.C. § 1326(a). At
sentencing, the district court applied United States Sentencing Guideline
(“U.S.S.G.”) § 2L1.2 (2005), which provides for a base offense level of eight.
Further, finding that Morales-Martinez’s prior conviction for delivery of cocaine
was a “drug trafficking offense for which the sentence imposed exceeded 13
months,” the district court applied a sentencing enhancement under U.S.S.G.
§ 2L1.2(b)(1)(A)(i), which carries a sixteen-level increase. Morales-Martinez
objected to the increase, arguing that his prior conviction was not a drug
trafficking offense within the meaning of the Guidelines; the district court
overruled this objection. The district court also applied a three-level reduction
for acceptance of responsibility, under U.S.S.G. § 3E1.1(a) and (b), for a total
offense level of 21. With a criminal history category of III, Morales-Martinez
was given a Sentencing Guideline range of 46-57 months imprisonment. The
district court sentenced Morales-Martinez to 54 months imprisonment and three
years supervised release.
Morales-Martinez timely filed his notice of appeal and challenges the
sixteen-level sentencing enhancement and the constitutionality of 8 U.S.C.
§ 1326(b).
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No. 06-40467
II
A
Because Morales-Martinez preserved the error by objecting at sentencing,
we review the district court’s interpretation of the Sentencing Guidelines de
novo. United States v. Stevenson, 126 F.3d 662, 664 (5th Cir. 1997). Morales-
Martinez does not challenge the fact that he was previously convicted of delivery
of cocaine, but rather challenges the classification of that conviction as a drug
trafficking offense. United States v. Sanchez-Ruedas, 452 F.3d 409, 412 (5th Cir.
2006).
Although, when classifying a prior conviction, a district court is generally
limited to applying the categorical approach set forth in United States v. Taylor,
495 U.S. 575, 602 (1990), “[t]his court has held that the determination of
whether a ‘drug trafficking offense’ was committed falls into the narrow range
of cases where the court may consider information other than the statutory
definition of the offense.” United States v. Garza-Lopez, 410 F.3d 268, 273 (5th
Cir. 2005) (citing United States v. Rodriguez-Duberney, 326 F.3d 613, 616-17 (5th
Cir. 2003)). Therefore, “[w]hen 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.” United States v. Gonzales, 484 F.3d 712,
714 (5th Cir. 2007) (citing Garza-Lopez, 410 F.3d at 273).
Morales-Martinez pleaded guilty to delivery of cocaine under § 481.112 of
the Texas Health and Safety Code. The statute defines “deliver” broadly:
“‘Deliver’ means to transfer, actually or constructively, to another a controlled
substance, counterfeit substance, or drug paraphernalia, regardless of whether
there is an agency relationship. The term includes offering to sell a controlled
substance, counterfeit substance, or drug paraphernalia.” Tex. Health & Safety
Code § 481.002(8). Because “deliver” is defined so broadly, we recently held,
“The statutory definition of delivery of a controlled substance in Texas, as
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No. 06-40467
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’”))namely because “offering to sell a controlled substance lies outside
section 2L1.2's definition of ‘drug trafficking offense.’” Gonzales, 484 F.3d at
714.
Because the statutory language encompasses both conduct that does
constitute a drug trafficking offense (transferring cocaine)and conduct that does
not (offering to sell cocaine), the district court may further rely on a “charging
document, written plea agreement, transcript of plea colloquy, and any explicit
factual finding by the trial judge to which the defendant assented.” Garza-
Lopez, 410 F.3d 268, 274 (5th Cir. 2005) (citing Shepard v. United States, 544
U.S. 13, 16 (2005)). In this case, we only have the charging document, an
indictment, which relevantly states, “Roberto Morales Martinez . . . did
unlawfully, knowingly and intentionally deliver, to-wit: actually transfer,
constructively transfer, and offer to sell a controlled substance, to-wit:
COCAINE in an amount by aggregate weight, including any adulterants or
dilutants of less than 28 grams . . . .” (emphasis added).
Although the allegations are presented in the conjunctive, indicating that
Morales-Martinez was being charged with actually transferring, constructively
transferring, and offering to sell cocaine, Morales-Martinez argues that his
guilty plea does not necessitate a finding that he performed each of the three
versions of the offense.
We addressed a similar issue in Gonzales, where we stated that “‘[a]
disjunctive statute may be pleaded conjunctively and proven disjunctively.’”
Gonzales, 484 F.3d at 715 (citing United States v. Still, 102 F.3d 118, 124 (5th
Cir. 1996)). Therefore, in Gonzales we found, “[E]ven though the indictment
charged Gonzales with actually transferring, constructively transferring, and
offering to sell a controlled substance, the jury could have convicted him based
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No. 06-40467
on an offer to sell alone.” Id. This fact was confirmed by the jury instructions
which stated that the jury could convict Gonzales in the disjunctive. Id.
This case is slightly different from Gonzales, though, in that Morales-
Martinez pleaded guilty rather than having a jury trial. As an initial matter,
there are no jury instructions to further limit what we can draw from the fact of
conviction. Moreover, the Government argues that Morales-Martinez’s guilty
plea admits to all the facts as they appear in the indictment; because the
indictment was written in the conjunctive, the Government argues that Morales-
Martinez’s guilty plea admits that he both transferred and offered to sell
cocaine. Therefore, the Government’s argument treats the alternate means of
committing the offense alleged in the indictment as facts to which Morales-
Martinez admitted when he pleaded guilty.
There is some caselaw supporting the Government’s argument that a
guilty plea admits all of the facts in the charging document. See, e.g., United
States v. White, 408 F.3d 399, 404 (8th Cir. 2005) (“‘[W]hen a defendant pleads
guilty he ‘admits all of the factual allegations made in the indictment.’”) (quoting
O'Leary v. United States, 856 F.2d 1142, 1143 (8th Cir. 1988)); United States v.
Tolson, 988 F.2d 1494, 1501 (7th Cir. 1993) (“[A] defendant who pleads guilty to
an indictment voluntarily and with the assistance of counsel before a United
States district court judge may not challenge the facts of the indictment on
appeal.”); cf. United States v. Broce, 488 U.S. 563, 570 (1989) (“By entering a plea
of guilty, the accused is not simply stating that he did the discrete acts described
in the indictment; he is admitting guilt of a substantive crime.”).
But not all courts apply this rule; other jurisdictions apply a narrower rule
that treats a guilty plea as admitting only those material facts needed to support
the conviction. See, e.g., United States v. Cazares, 121 F.3d 1241, 1246-47 (9th
Cir. 1997) (“[A] plea of guilty admits the facts constituting the elements of the
charge . . . . [A]llegations not necessary to be proved for a conviction - in this
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No. 06-40467
case the overt acts - are not admitted by a plea.”); see also Valansi v. Ashcroft,
278 F.3d 203, 216 (3d Cir. 2002) (“The use of the conjunctive in the indictment
is ‘to avoid uncertainty’ only; just as the Government may obtain a conviction if
‘only one of the several allegations linked in the conjunctive in the indictment
is proven,’ so may a defendant plead guilty to only one of the allegations required
to prove an element of her crime.”); cf. 1A Charles A. Wright, Federal Practice
and Procedure § 175 (3d ed. 1999) (“The better rule is that the plea is an
admission of only the facts essential to the conviction.”).
Our own recent caselaw is not entirely clear on this point. See United
States v. Mungia-Portillo, 484 F.3d 813, 815 n.1 (5th Cir. 2007) (“In Omari v.
Gonzales, the court observed that indictments often conjunctively allege
elements that are disjunctive in the corresponding statute and that ‘this does not
require . . . that a defendant admit to all of them when pleading guilty.’ 419 F.3d
303, 309 n.10 (5th Cir. 2005). By contrast, in United States v. Still, the court
stated that, when a defendant pleaded guilty to a conjunctive charge, he
admitted both elements. 102 F.3d 118, 124-25 (5th Cir. 1996).”).1
Because different jurisdictions have different rules, we must determine the
effects of a guilty plea in the jurisdiction in which Morales-Martinez actually
entered his guilty plea, namely Texas state courts. The weight of Texas caselaw
reveals that Texas takes the narrower approach, treating a guilty plea as an
admission of only those facts needed to support the conviction.2 See, e.g., Carroll
1
Still need not be read as being in tension with Omari. The analysis of the issue in
Still is brief and the opinion does not reveal the actual nature of the defendant’s
plea))specifically whether his plea colloquy actually admitted to both means of committing the
offense, which were alleged in the conjunctive, or whether the facts alleged in the indictment
made the means of committing the offense inextricably intertwined, such that the defendant
could not plead guilty to one of the means without pleading guilty to the other. Still, 102 F.3d
at 125.
2
The facts needed to support a conviction are those facts which the State is required
to prove; this may, in some circumstances, be more than the mere elements of an offense. See
Eastep v. State, 941 S.W.2d 130, 135 (Tex. Crim. App. 1997) (“Where the unnecessary
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No. 06-40467
v. State, 975 S.W.2d 630, 631-32 (Tex. Crim. App. 1998) (“[W]here a defendant
pleads guilty to a felony charge before a jury or judge, [the defendant] admits the
existence of all facts necessary to establish guilt . . . .”); Brinson v. State, 570
S.W.2d 937, 938 (Tex. Crim. App. 1978) (“It is well established that a plea of
guilty before a jury admits all the elements of the offense.”); but see, e.g.,
Fairfield v. State, 610 S.W.2d 771, 776 (Tex. Crim. App. 1981) (suggesting that
“the plea established the facts alleged by indictment”).
The narrower rule is consistent with the Texas procedure for establishing
guilt following a guilty plea. “[Tex. Code Crim. Proc. art. 1.15] requires that the
State offer sufficient proof to support any judgment based on a guilty or nolo
contendere plea to a felony case tried before the court. Under this statute
evidence is received to support the judgment, not to accept a plea of guilty or
nolo contendere.” Ex parte Williams, 703 S.W.2d 674, 678 (Tex. Crim. App.
1986); see also Tex. Code Crim. Proc. art. 1.15 (“[I]t shall be necessary for the
state to introduce evidence into the record showing the guilt of the defendant
and said evidence shall be accepted by the court as the basis for its judgment
and in no event shall a person charged be convicted upon his plea without
sufficient evidence to support the same.”). The evidence presented by the State
is the basis of the judgment. Because the State is only required to present
evidence sufficient to support the conviction, the State need not present evidence
that the defendant committed the offense according to each of the means alleged
in the indictment. See Smith v. State, 135 S.W.3d 259, 263 (Tex.
App.))Texarkana [6th Dist.] 2004, no pet.) (“When a statute provides multiple
means for the commission of an offense and those means are subject to the same
[allegation] is descriptive of that which is legally essential to charge a crime, the State must
prove it as alleged though needlessly pleaded.”) (internal citations omitted); see, e.g., Windham
v. State, 638 S.W.2d 486, 487 (Tex. Crim. App. 1982) (requiring the State to prove that the
defendant violated the statute by the specific means alleged in the indictment, namely
committing attempted murder by shooting a gun).
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No. 06-40467
punishment, the State may plead them conjunctively. However, the State is
required to prove only one of the alleged means in order to support the
conviction.”). The Government has not now presented any evidence, such as the
plea colloquy or other admissions by Morales-Martinez, indicating what evidence
the State presented in Morales-Martinez’s 1993 conviction or what evidence the
Texas court relied on to support the conviction.
In this case, having nothing more than the fact of conviction and the
charging document, we know only that the State offered some evidence sufficient
to support conviction. The conviction, though, could have been supported if the
State offered evidence that Morales-Martinez actually transferred,
constructively transferred, or offered to sell cocaine. Therefore, we cannot
determine, on the sole basis of Morales-Martinez’s guilty plea and the above-
described charging document, whether Morales-Martinez transferred cocaine or
merely offered to sell cocaine.
Under the approach set forth in Taylor and Shepard, we must consider
“whether an earlier guilty plea necessarily admitted, and supported a conviction
for,” the facts needed to apply a particular sentencing enhancement. Shepard,
544 U.S. at 16. Because neither the statutory language nor the charging
document necessitates a finding that Morales-Martinez committed a drug
trafficking offense, the district court erred by applying the sixteen-level
enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(i).
B
Finally, Morales-Martinez challenges the constitutionality of the “felony”
and “aggravated felony” provisions of 8 U.S.C. § 1326(b)(1) and (2). The
constitutionality of these provisions was upheld in Almendarez-Torres v. United
States, 523 U.S. 224, 235 (1998). Almendarez-Torres is binding precedent unless
overruled by the Supreme Court. Therefore, Morales-Martinez’s argument is
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No. 06-40467
foreclosed by precedent. United States v. Mendez-Villa, 346 F.3d 568, 570-571
(5th Cir. 2003).
III
Because the district court improperly calculated Morales-Martinez’s
Sentencing Guideline range by applying a sixteen-level sentencing enhancement
under U.S.S.G. § 2L1.2(b)(1)(A)(i), we VACATE the sentence and REMAND for
re-sentencing.
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