Case: 10-11119 Document: 00511696472 Page: 1 Date Filed: 12/15/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
December 15, 2011
No. 10-11119
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
HUGO REYES-MENDOZA,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Texas
Before SMITH, BARKSDALE, and BENAVIDES, Circuit Judges.
JERRY E. SMITH, Circuit Judge:
Hugo Reyes-Mendoza pleaded guilty of illegal reentry after removal from
the United States in violation of 8 U.S.C. § 1326(a) and (b)(2). He had a convic-
tion of manufacturing a controlled substance in violation of section 11379.6 of
the California Health and Safety Code. Because the district court classified that
conviction as a “drug trafficking offense,” the sentence was enhanced by sixteen
levels under U.S.S.G. § 2L1.2. Reyes-Mendoza unsuccessfully objected to the
Case: 10-11119 Document: 00511696472 Page: 2 Date Filed: 12/15/2011
No. 10-11119
classification and was sentenced at the top of the 70-87-month sentencing range.
He contests the classification of the prior conviction.
This court reviews a challenge to a preserved application and interpreta-
tion of the sentencing guidelines de novo. United States v. Sandoval-Ruiz, 543
F.3d 733, 735 (5th Cir. 2008). In determining whether a conviction meets the
definition of a drug-trafficking offense for purposes of § 2L1.2(b)(1)(A)(i), we
apply a strict “categorical approach,” looking only to the statutory definition of
the prior offense and not to the particular facts underlying the conviction. Id.;
Taylor v. United States, 495 U.S. 575, 600 (1990). Where the record does not
make clear the offender’s offense and conviction, courts must ensure that the
least culpable act that violates the statute constitutes a drug-trafficking offense.
See United States v. Gonzalez-Ramirez, 477 F.3d 310, 315-16 (5th Cir. 2007).
Accordingly, our inquiry centers on whether the least-culpable act that would
violate section 11379.6 would also qualify as “drug trafficking” for purposes of
§ 2L1.2. If section 11379.6 is broad enough to criminalize conduct that would not
constitute trafficking under § 2L1.2, then the sentence should not have been
enhanced.
Section 11379.6 punishes any person “who manufactures, compounds, con-
verts, produces, derives, processes, or prepares, either directly or indirectly by
chemical extraction or independently by means of chemical synthesis, any con-
trolled substance . . . .” The definition of “drug trafficking offense” for purposes
of § 2L1.2 includes an “offense under . . . state . . . law that prohibits the manu-
facture . . . of a controlled substance.” On its face, section 11379.6 meets the
definition of “drug trafficking offense”; the word “manufacture,” however, has
been interpreted quite broadly for purposes of that section. Because we do not
read “manufacture” that broadly for purposes of the sentencing guidelines, there
are some acts that would violate section 11379.6 without qualifying as a “drug
trafficking offenses” for purposes of § 2L1.2. We therefore vacate the sentence
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and remand for resentencing without the enhancement.
I.
The parties essentially agree on the scope of section 11379.6: that it crim-
inalizes the synthesis, processing, or preparation of a chemical that the defen-
dant knew would be used to make a controlled substance, even if he had no
intention of making a controlled substance. The requirements of the statute are
most plainly laid out in the Judicial Council of California Criminal Jury
Instructions:
The People do not need to prove that the defendant completed the
process of manufacturing or producing a controlled substance.
Rather, the People must prove that the defendant knowingly parti-
cipated in the beginning or intermediate steps to process or make a
controlled substance. Thus, the defendant is guilty of this crime if
the People have proved that:
1. The defendant engaged in the synthesis, processing, or prepara-
tion of a chemical that is not itself a controlled substance; AND
2. The defendant knew that the chemical was going to be used in
the manufacture of a controlled substance.
Judicial Council of California Criminal Jury Instructions § 2330, Manufacturing
a Controlled Substance (HEALTH & SAF. CODE, § 11379.6(a), (b)) (LexisNexis Fall
2008 ed.). Section 11379.6 requires knowledge that a controlled substance would
be produced, and that requirement applies where the defendant was producing
only a precursor to a controlled substance. People v. Coria, 21 Cal. 4th 868 (Cal.
1999).
Therefore, section 11379.6 would apply to the extraction of a precursor to
methamphetamine from pills, provided the defendant knew the resulting precur-
sor would eventually be used for the production of methamphetamine. He would
not have to intend specifically to produce methamphetamine or even intend that
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No. 10-11119
it ever be produced. For example, he would be guilty under this statute if he
extracted a precursor and sold it to someone he knew would use it to produce
methamphetamine.
II.
The breadth of the term “manufacture” is not as well defined for purposes
of § 2L1.2. No caselaw has been brought to our attention that directly discusses
whether making a precursor with knowledge that it will be used to manufacture
a controlled substance falls within § 2L1.2’s definition of “manufacture.” Both
a plain reading of the phrase “manufacture a controlled substance” and caselaw
point, however, to the exclusion of manufacturing a precursor from § 2L1.2’s
definition of “manufacture.”
A plain reading of the phrase “manufacture a controlled substance” seems
to exclude production of a precursor without an intent eventually to produce the
finished product. A manufacturer of rubber would not normally be considered
a manufacturer of tires, even if he knows a tire company will buy his rubber. It
would also strain language to say that someone who makes rubber with the
knowledge that it will eventually be used in tires is “attempting to make tires.”
We take comfort that this plain reading is also the most harmonious with
the reported cases. In United States v. Arizaga-Acosta, 436 F.3d 506, 508 (5th
Cir. 2006), we held that possession of a precursor with intent to manufacture a
controlled substance was not a “drug trafficking offense” for purposes of 2L1.2.
We also held that possession of a precursor with intent to manufacture was not
substantially equivalent to attempted manufacture of a controlled substance. Id.
Because the possession of a precursor necessarily happens after its production,
it would be in tension with prior caselaw to construe the manufacture of a pre-
cursor as an attempted manufacture of the controlled substance. With such a
holding, the event that is closer to the eventual danger (the possession of the
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No. 10-11119
precursor) would not constitute an attempt, but the more distant event would.
This result is also in line with United States v. Forester, 836 F.2d 856,
859-61 (5th Cir. 1988), in which we held that the defendant could not be sen-
tenced for both production of a precursor with intent to manufacture a controlled
substance and the attempted manufacture of a controlled substance. We
concluded that these were separate crimes, and separate convictions were pos-
sible. Only one sentence was appropriate, however, because the production of
the precursor included no additional elements that were not included in the
attempted production of a controlled substance. Id. If Congress intended the
production of a precursor always to constitute attempted production of a con-
trolled substance, then the statute criminalizing the production of the precursor
would be superfluous; it would criminalize no new conduct. Therefore, the canon
against surplusage counsels against construing “manufacture” so broadly as to
make the production of a precursor always sufficient to qualify as an attempt.
III.
The California statute applies to production of a precursor with knowledge
that it will be used to produce a controlled substance. That statute would crim-
inalize the production of a precursor for sale to a third party who uses it to man-
ufacture a controlled substance. If the federal guideline is construed according
to the plain meaning of “manufacture a controlled substance,” it would not crim-
inalize such conduct. Therefore, the least culpable act that violates § 11379.6
would not fall under the definition of “manufacture” for purposes of § 2L1.2.
The government argues that the production of a precursor with the intent
to sell it to a third party would still constitute aiding and abetting the manufac-
ture of a controlled substance, even if “manufacture” were construed to include
only the production of the finished product. Aiding and abetting, however,
requires the offense to be completed. See United States v. McCoy, 539 F.2d 1050,
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1064 (5th Cir. 1976). Therefore, the California statute would still be broader
than the federal guideline, because the statute does not include an element that
the controlled substance actually be produced.
The government also maintains that even if “manufacture” requires pro-
duction of the final product, any production of a precursor would be an attempt.
That is not always true, because the mens rea of attempt is higher than the mens
rea of the California statute. Attempt requires intent to commit the underlying
offense, United States v. Polk, 118 F.3d 286, 291 (5th Cir. 1997), but the Califor-
nia statute requires only knowledge that the precursor will be used to produce
the controlled substance. See Coria, 21 Cal. 4th at 881.
IV.
A procedural error during sentencing is harmless if “the error did not
affect the district court’s selection of the sentence imposed.” Williams v. United
States, 503 U.S. 193, 203 (1992). The burden of establishing that an error is
harmless rests on the party seeking to uphold the sentence. United States v.
Delgado-Martinez, 564 F.3d 750 (5th Cir. 2009). The government has not even
attempted to argue that the error was harmless. Reyes-Mendoza’s sentence was
at the maximum end of the guideline range with the enhancement, and it
exceeds the upper bound of the range when it is properly calculated. There is no
evidence that the district court would have sentenced above the proper sentenc-
ing range.
Having determined that the guideline calculation was in error and that
the error was not harmless, we VACATE the sentence and REMAND for
resentencing.
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