[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 10-15835 AUGUST 26, 2011
Non-Argument Calendar JOHN LEY
________________________ CLERK
D.C. Docket No. 9:10-cr-80084-WPD-1
UNITED STATES OF AMERICA,
llllllllllllllllllllllllllllllllllllllll Plaintiff-Appellee,
versus
RICARDO DOMINGUEZ GUTIERREZ,
a.k.a. Nicholas Montoya,
a.k.a. Nicholas Nolasco,
llllllllllllllllllllllllllllllllllllllll Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(August 26, 2011)
Before TJOFLAT, CARNES and HULL, Circuit Judges.
PER CURIAM:
Ricardo Gutierrez appeals his 57-month sentence, imposed after he pled
guilty to one count of reentry of a deported alien, in violation of 8 U.S.C.
§§ 1326(a) and (b)(2). After review, we affirm.
On appeal, Gutierrez challenges the district court’s imposition of a sixteen-
level enhancement pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(i). Section 2L1.2
increases a defendant’s offense level by sixteen levels if the defendant was
deported following a felony conviction for “a drug trafficking offense.” U.S.S.G.
§ 2L1.2(b)(1)(A)(i). The district court concluded that Gutierrez’s 1997 conviction
under California Health and Safety Code § 11352(a) was a “drug trafficking
offense.”
Generally, courts use a “‘categorical’ approach” to determine whether a
prior conviction is a qualifying offense for purposes of a sentencing enhancement.
United States v. Aguilar-Ortiz, 450 F.3d 1271, 1273 (11th Cir. 2006). Under this
approach, the court looks to the fact of conviction and the statutory elements of the
offense. United States v. Palomino Garcia, 606 F.3d 1317, 1328 (11th Cir. 2010).
However, when the state statute covers conduct broader than the offense described
in the guidelines such that the conviction may or may not qualify for the
enhancement and the judgment is ambiguous, the court uses a “‘modified
categorical approach.’” Id. at 1336. This approach allows the court to look at
certain judicial documents, approved in Shepard v. United States, 544 U.S. 13, 125
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S. Ct. 1254 (2005), such as the plea transcript and the charging documents, to
ascertain whether the prior conviction qualifies the defendant for the enhancement.
United States v. Pantle, 637 F.3d 1172, 1175 (11th Cir. 2011).
As to Gutierrez’s 1997 conviction, the California statute makes it a crime if
a person “transports, imports into this state, sells, furnishes, administers, or gives
away,” certain controlled substances, or “offers to” or “attempts to” do so. Cal.
Health & Safety Code § 11352(a). The Information for Gutierrez’s 1997
conviction, to which Gutierrez pled no contest, alleges in four separate counts that
Gutierrez committed the crime of “SALE OR TRANSPORTATION OF A
CONTROLLED SUBSTANCE” when he “did willfully and unlawfully transport,
import into the State of California, sell, furnish, administer, and give away, and
offer to transport, import into the State of California, sell, furnish, administer, and
give away and attempt to import into the State of California and transport a
controlled substance, to wit, COCAINE.” (Emphasis added.)1 In other words,
Gutierrez’s Information used the conjunctive “and” in listing the acts constituting
the offense charged.
Gutierrez argues that under either the categorical approach or the modified
1
Gutierrez’s Information and the transcript of his plea hearing were not part of the record
in the district court. This Court granted the government’s unopposed motion to supplement the
record and to take judicial notice of these two documents related to Gutierrez’s 1997 conviction.
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categorical approach, the district court could not have categorized his 1997
conviction as a “drug trafficking offense” because the California statute includes
crimes, such as transporting drugs, that do not fall within § 2L1.2’s definition of
drug trafficking offenses. Because Gutierrez raises this issue for the first time on
appeal, we review only for plain error. See United States v. Beckles, 565 F.3d
832, 842 (11th Cir.), cert. denied, 130 S. Ct. 272 (2009). “A plain error is an error
that is obvious and is clear under current law.” United States v. Humphrey, 164
F.3d 585, 588 (11th Cir. 1999) (quotation marks omitted). “Without precedent
directly resolving [the] claim, . . . the district court’s alleged error is not ‘obvious’
or ‘clear under current law.’” Id. (finding no plain error where neither this Circuit
nor the Supreme Court had decided the issue and there was a circuit split).
Here, Gutierrez cannot show plain error for several reasons. First, neither
this Court nor the Supreme Court has addressed whether the “transportation” of
drugs under the California statute constitutes a “drug trafficking offense” for
purposes of § 2L1.2(b)(1)(A)’s sixteen-level enhancement.2 Other circuits have
concluded that it does not and thus have resorted to the modified categorical
2
The commentary defines a “drug trafficking offense” as an offense “that 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) (quotation marks omitted).
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approach to determine whether the defendant’s conviction qualifies. See United
States v. Castellanos-Barba, No. 10-1238, ___ F.3d ___, 2011 WL 3184203 at *2
(10th Cir. July 27, 2011); United States v. Medina-Almaguer, 559 F.3d 420, 422
(6th Cir. 2009); United States v. Garcia-Medina, 497 F.3d 875, 877 (8th Cir.
2007); United States v. Gutierrez-Ramirez, 405 F.3d 352, 359 (5th Cir. 2005).
Second, even if we assume arguendo that transporting drugs under the
California statute is not a “drug trafficking offense” and look to Shepard-approved
materials under the modified categorical approach, Gutierrez pled no contest to an
Information that charged him with importing, selling, furnishing, administering
and giving away cocaine in addition to transporting it. Even Gutierrez agrees that
some of these offenses charged in his Information fall within § 2L1.2’s definition
of a “drug trafficking offense.”
Instead, Gutierrez argues that, regardless of the wording of his Information,
he pled guilty to violating the California statute in the disjunctive. Gutierrez
points to the transcript of his plea hearing, in which the state court referred to the
charged offenses as the “sale or transportation of a controlled substance,” i.e.,
using the disjunctive “or,” when it asked Gutierrez how he pled to each count in
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the Information.3 Gutierrez contends that the plea transcript “actually
demonstrates quite clearly that [he] entered a plea of no contest to charges of sale
OR transportation of a controlled substance.”
The transcript does not show that Gutierrez entered a disjunctive plea.
Gutierrez pled no contest to violating § 11352 as it was alleged in each count of
his Information. The fact that the state court also referred to the crime by its
common, shorthand name—the sale or transportation of a controlled substance—
did not make his plea a disjunctive plea. The transcript and record as a whole
indicates Gutierrez entered a conjunctive plea.
Finally, neither this Court nor the Supreme Court has addressed whether and
3
According to the plea hearing transcript, the exchange proceeded as follows:
The Court: Mr. Gutierrez, how do you plead to the following allegations:
violation of Health & Safety Code Section 11352, the crime of Sale or Transportation
of a Controlled Substance, Count I of the Information?
The Defendant: I don’t understand.
(Discussion held off the record.)
The Defendant: No Contest.
The Court: Mr. Gutierrez, how do you plead to Count II of the
Information, another charge of a violation of 11352 of the Health & Safety Code,
Sale or Transportation of a Controlled Substance?
The Defendant: Also No Contest.
The Court: Count III and Count IV are similar charges; that is, they also
allege violations of Health & Safety Code Section 11352. How do you plead to
Count III?
The Defendant: No Contest.
The Court: How do you plead to Count IV?
The Defendant: The same.
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when a defendant’s guilty plea to a charge stated in the conjunctive (like
Gutierrez’s) admits all the elements in the charge. Other circuits that have
addressed the issue are split. See United States v. Torres-Romero, 537 F.3d 1155,
1158-59 (10th Cir. 2008) (concluding that for purposes of § 2L1.2(b)(1)(A)’s
sixteen-level enhancement, defendant admitted to all the acts charged in the
indictment, which included selling, distributing and possessing a controlled
substance in violation of a Colorado statute); Garcia-Medina, 497 F.3d at 877-78
(concluding that charging document that tracked the language of California’s §
11352(a), but listed the offenses in the conjunctive, was “sufficient to satisfy the
‘drug trafficking’ definition of section 2L1.2”); but see Young v. Holder, 634 F.3d
1014, 1020-22 (9th Cir. 2011) (concluding, in the immigration context, that alien’s
prior guilty plea to an information charging him in the conjunctive with violating
California’s § 11352(a) did not constitute an admission to committing every act
listed in the statute).
Given that there is no precedent in this Circuit or the Supreme Court
directly resolving the issue, the alleged error, if there was one at all, was not clear
or obvious under current law. Thus, the district court did not plainly err in
concluding that Gutierrez’s prior § 11352(a) conviction was a drug trafficking
offense and applying § 2L1.2(b)(1)(A)’s sixteen-level enhancement.
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Gutierrez also argues that the imposition of § 2L1.2(b)(1)(A)’s sixteen-level
enhancement violated his Fifth and Sixth Amendment rights. Gutierrez’s
argument is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 118
S. Ct. 1219 (1998). We are bound by Almendarez-Torres until it is explicitly
overruled by the Supreme Court. United States v. Greer, 440 F.3d 1267, 1273-74
(11th Cir. 2006).
AFFIRMED.
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