IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 31, 2007
No. 06-40486 Charles R. Fulbruge III
Summary Calendar Clerk
UNITED STATES OF AMERICA,
Plaintiff–Appellee,
v.
JAIME GUTIERREZ-BAUTISTA,
Defendant–Appellant.
Appeal from the United States District Court
for the Southern District of Texas
No. 5:05-CR-2210
Before SMITH, WIENER, and OWEN, Circuit Judges.
PRISCILLA R. OWEN, Circuit Judge:
We withdraw the opinion released July 27, 2007, and issue the following.
Defendant-Appellant Jaime Gutierrez-Bautista pleaded guilty without a
plea agreement to being unlawfully present in the United States after
deportation. In calculating the advisory Sentencing Guideline range of
imprisonment, the district court applied a 16-level increase under U.S.S.G.
§ 2L1.2(a), concluding that Gutierrez-Bautista had previously been convicted in
Georgia of a drug trafficking offense, within the meaning of the Guidelines.1
1
U.S.S.G. § 2L1.2, cmt. n.1(B)(iv).
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Gutierrez-Baustista asserts that the Georgia conviction was not for such an
offense and therefore that the enhancement was error.
He further contends that 8 U.S.C. § 1326(b)(1) and (2) are facially
unconstitutional because these provisions treat prior felony and aggravated
felony convictions as sentencing factors, rather than elements of a crime
requiring a finding of proof beyond a reasonable doubt, citing Apprendi v. New
Jersey.2 He additionally contends that these provisions are unconstitutional as
applied to him because even if a prior conviction had been proven beyond a
reasonable doubt, the indictment did not allege that he was deported after he
was convicted of a felony or an aggravated felony. We affirm.
I
As indicated, Gutierrez-Bautista entered a guilty plea to being unlawfully
present in this country after he had been deported. The Presentence Report
(PSR) assigned Gutierrez-Bautista a base offense level of eight pursuant to
U.S.S.G. § 2L1.2(a); a 16-level increase under § 2L1.2(b)(1)(A)(i), concluding that
a prior 1999 Georgia conviction was for trafficking in methamphetamine; and a
three-level decrease pursuant to U.S.S.G. § 3E1.1(a) and (b) for acceptance of
responsibility. Gutierrez-Bautista’s criminal history of five resulted in a
criminal history category of IV. The PSR calculated an advisory guideline
sentencing range of 57 to 71 months of imprisonment.
Gutierrez-Bautista filed two objections to the PSR, contending that (1) the
enhancement of his sentence under 8 U.S.C. § 1326(b) was unconstitutional in
view of Apprendi v. New Jersey,3 and (2) the 16-level enhancement was
improper, because his prior Georgia conviction was not a “drug trafficking
offense” under § 2L1.2(b)(1)(A)(i). The district court overruled Gutierrez-
2
530 U.S. 466 (2000).
3
Id.
2
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Bautista’s objections and sentenced him to 60 months of imprisonment.
Gutierrez-Bautista timely filed a notice of appeal.
II
Gutierrez-Bautista was sentenced after the Supreme Court issued its
decision in United States v. Booker.4 He challenged the enhancement of his
sentence under § 2L1.2(b)(1)(A) in the district court. Accordingly, we review the
district court’s interpretation and application of the Sentencing Guidelines
de novo and its factual findings for clear error.5
A 16-level enhancement is imposed under the Sentencing Guidelines when
a person convicted of being unlawfully present in the United States has a prior
felony conviction that is “a drug trafficking offense for which the sentence
imposed exceeded 13 months.”6 The commentary to the Guidelines defines “drug
trafficking offense”:
“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 a counterfeit
substance) or the possession of a controlled substance (or a
counterfeit substance) with intent to manufacture, import, export,
distribute, or dispense.7
In considering whether a prior conviction qualifies as a drug trafficking
offense, we look to the statutory definition and elements of the offense.8 We may
4
543 U.S. 220 (2005).
5
United States v. Villanueva, 408 F.3d 193, 202-03 & n.9 (5th Cir. 2005), cert. denied,
126 S. Ct. 268 (2005); see also United States v. Villegas, 404 F.3d 355, 359-61 (5th Cir. 2005).
6
U.S.S.G. § 2L1.2(b)(1)(A)(i).
7
U.S.S.G. § 2L1.2, cmt. n.1(B)(iv).
8
Taylor v. United States, 495 U.S. 575, 602 (1990) (determining whether an
enhancement was proper under the Armed Career Criminal Act); United States v. Garza-Lopez,
410 F.3d 268, 273 (5th Cir. 2005).
3
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look beyond the statute if the fact-finder “necessarily had to find”9 the elements
of a “drug trafficking offense.” If a statute permits a conviction for conduct that
is a “drug trafficking offense,” and conduct that is not, a court may consider the
charging papers, a written plea agreement, a guilty-plea transcript, jury
instructions, and factual findings by the trial judge to which the defendant
assented.10
The Georgia statute under which Gutierrez-Bautista was convicted
provides, in pertinent part:
16-13-31 Trafficking in cocaine, illegal drugs, marijuana, or
methamphetamine; penalties.
...
(e) Any person who knowingly sells, manufactures,
delivers, or brings into this state or has possession of 28 grams or
more of methamphetamine, amphetamine, or any mixture
containing either methamphetamine or amphetamine, as described
in Schedule II, in violation of this article commits the felony offense
of trafficking in methamphetamine or amphetamine . . . .11
Gutierrez-Bautista pleaded guilty in Georgia state court to a count in an
indictment which charged that he “committed the offense of TRAFFICKING IN
METHAMPHETAMINE” in that he “did . . . knowingly sell and possess a
quantity of a mixture containing methamphetamine exceeding 28 grams.” It is
undisputed that this indictment charged a violation of § 16-13-31(e) and that he
was sentenced to 15 years’ imprisonment and five years of probation.
Gutierrez-Bautista argues that the Georgia statute may be violated by
9
See Taylor, 495 U.S. at 602.
10
Shepard v. United States, 544 U.S. 13, 16-17, 20-21 (2005) (addressing enhancement
under the Armed Career Criminal Act); Garza-Lopez, 410 at 273.
11
GA. CODE ANN. § 16-13-31(e) (1999).
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proof of either selling or merely possessing methamphetamine and therefore that
his 1999 conviction does not constitute a “drug trafficking offense” under
§ 2L1.2(b)(1)(A)(i). He further urges that the district court erred in determining
that he admitted both selling and possessing methamphetamine when he
entered a guilty plea to the Georgia offense. The government states in its
briefing in this court that “the pertinent statute alleged ways of committing the
crime that do not fall within the Guidelines’ definition of ‘drug trafficking
offense,’” but maintains that Gutierrez-Bautista pleaded guilty to both selling
and possessing. We do not decide whether an admission to possessing more than
28 grams of methamphetamine in violation of Georgia law constitutes a drug
trafficking offense within the meaning of the Guidelines because Gutierrez-
Baustista’s guilty plea admitted both selling and possessing.
We look to Georgia law to determine the effect of Gutierrez-Bautista’s
guilty plea.12 Gutierrez-Bautista argues that under Georgia law, an indictment
may charge an offense in the conjunctive, such as “selling and possessing,” even
if the statute creating the offense is in the disjunctive, such as “selling or
possessing,” but that proof of either will suffice to support a conviction.
Therefore, he contends, a guilty plea admits only the minimal facts necessary to
support a conviction. This may be the case in some jurisdictions,13 but Georgia
is not one of them.
It is true that when a Georgia statute may be violated in more than one
way, Georgia state courts will sustain a conviction based on proof of one act,
12
See United States v. Morales-Martinez, 496 F.3d 356, 359 (5th Cir. 2007) (holding that
“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”), cert. denied, 2007 U.S. Lexis
11238 (U.S. Oct. 9, 2007).
13
See Id., 496 F.3d at 359.
5
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even if the indictment is in the conjunctive.14 But Georgia law establishes that
a guilty plea admits all averments of fact in the indictment or accusation.15
After a guilty plea, the defendant’s only available substantive defense is that the
indictment does not allege a crime.16 The Georgia appellate court has routinely
denied attempts by defendants to later allege that, despite a guilty plea, certain
factual averments are untrue.17
Gutierrez-Bautista’s indictment makes both a factual averment that he
knowingly sold methamphetamine and a factual averment that he possessed
methamphetamine. Under Georgia law, his guilty plea admits that he both sold
and possessed the drug. Moreover, in his guilty plea, Gutierrez-Bautista
acknowledged he had read and understood the indictment and “was guilty as
charged in the indictment.” Thus, Gutierrez-Bautista’s conviction under the
Georgia drug trafficking statute18 constitutes a “drug trafficking offense” as
defined by the commentary to the Guidelines19 because he admitted selling
methamphetamine.
III
Gutierrez-Bautista also contends that § 1326(b)’s treatment of prior felony
14
See, e.g., Adams v. State, 494 S.E.2d 92, 95 (Ga. Ct. App. 1997).
15
Hilliard v. State, 75 S.E.2d 173, 176 (Ga. Ct. App. 1953).
16
Id.
17
See, e.g., Harrison v. State, 373 S.E.2d 78 (Ga. Ct. App. 1988) (rejecting defendant’s
claim that, despite his guilty plea, insufficient evidence existed to prove defendant unlawfully
operated a motor vehicle and holding that a guilty plea admits all averments of fact); Williams
v. State, 330 S.E.2d 435 (Ga. Ct. App. 1985) (holding that a guilty plea admits all averments
of fact and rejecting defendant’s claim that the officer’s failure to notarize defendant’s citation
should void his guilty plea).
18
GA. CODE ANN. § 16-13-31(e) (1999).
19
U.S.S.G. § 2L1.2, cmt. n.1(B)(iv).
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and aggravated felony convictions as sentencing factors, rather than as elements
of the offense that must be found by a jury, is unconstitutional, both facially and
as applied, in light of Apprendi. This contention is foreclosed by
Almendarez-Torres v. United States,20 in which the Supreme Court held that
treatment of prior convictions as sentencing factors in § 1326(b)(1) and (2) was
constitutional. Although Gutierrez-Bautista asserts that a majority of the
Supreme Court would now consider Almendarez-Torres to be incorrectly decided
in light of Apprendi, this argument is undercut by the Supreme Court’s recent
reaffirmation of Almendarez-Torres in James v. United States.21 Since James,
this court has said that arguments like Gutierrez-Bautista’s “will be viewed with
skepticism, much like arguments challenging the constitutionality of the federal
income tax”22 and that “this issue is ‘fully foreclosed from further debate.’”23
Gutierrez-Bautista concedes as much, raising this claim to preserve it for further
review.
* * *
The conviction and sentence imposed by the district court are AFFIRMED.
20
523 U.S. 224, 235 (1998).
21
127 S.Ct. 1586, 1600 (2007).
22
United States v. Pineda-Arrellano, 492 F.3d 624, 626 (2007), petition for cert. filed
(Aug. 28, 2007) (No. 07-6202).
23
Id. at 625.
7