IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
September 17, 2008
No. 08-30192
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
EDUARDO PILLADO-CHAPARRO, also known as Eduardo
Martinez-Gonzalez
Defendant-Appellant
Appeal from the United States District Court
for the Middle District of Louisiana
Before DAVIS, GARZA and PRADO, Circuit Judges.
PER CURIAM:
Eduardo Pillado-Chaparro (Pillado) pleaded guilty to illegal reentry into
the United States after previously being deported, in violation of 8 U.S.C. § 1326.
The presentence report (PSR) assigned Pillado a base offense level of eight for
violating § 1326. His base offense level was enhanced by 16 levels pursuant to
U.S.S.G. § 2L1.2(b)(1)(A)(i) because he had a prior 21 U.S.C. § 843(b) conviction
for using a telephone to facilitate a conspiracy to distribute marijuana “and/or”
cocaine, a “drug trafficking offense.” Pillado received three levels of credit for
acceptance of responsibility, for a total offense level of 21. With a criminal
history category of II, the advisory guidelines range was 41 to 51 months of
imprisonment.
No. 08-30192
Pillado argues that the district court erred in imposing a 16-level
enhancement under § 2L1.2(b)(1)(A)(i) based on his § 843(b) conviction,
contending that a § 843(b) conviction does not constitute a “drug trafficking
offense” under the guideline. We review de novo the district court’s
interpretation and application of the guideline. United States v. Villegas, 404
F.3d 355, 359 (5th Cir. 2005).
Section 2L1.2 provides for a 16-level increase in the base offense level for
defendants convicted of illegal reentry if the defendant has previously been
convicted of “a drug trafficking offense for which the sentence imposed exceeded
13 months.” § 2L1.2(b)(1)(A)(i). “Drug trafficking offense” is defined as follows:
“an offense under federal, state, or local law 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.” § 2L1.2, cmt. (n.1(B)(iv)).
We employ the categorical approach set forth in Taylor v. United States,
495 U.S. 575, 602, (1990), to determine whether a prior conviction qualifies as
a drug trafficking offense under § 2L1.2. United States v. Rodriguez, 523 F.3d
519, 524 (5th Cir.), petition for cert. filed (No. 08-5101) (June 30, 2008). In so
doing, we look to the elements of the prior offense, rather than to the facts
underlying the conviction. Id. If the statute of conviction contains multiple
disjunctive sections which prohibit conduct that will support a sentence
enhancement and other conduct that will not, we may look to, inter alia, the
charging paper to determine which section applies to the defendant’s conviction.
Id. A court may not, however, look to the PSR’s characterization of the offense
to make its determination regarding the propriety of the enhancement. United
States v. Garza-Lopez, 410 F.3d 268, 274 (5th Cir. 2005).
The issue whether a § 843(b) conviction constitutes a drug trafficking
offense under § 2L1.2(b)(1)(A)(i) is res nova in this circuit. The Eleventh Circuit
was the first of four circuits to address the issue and hold that a prior conviction
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for use of a communication facility meets the definition of “drug trafficking
offense” and supports the 16-level enhancement in § 2L1.2(b)(1)(A). See United
States v. Orihuela, 320 F.3d 1302, 1305 (11th Cir. 2003); see also United States
v. Jimenez, __ F. 3d. __, No. 2008 WL 2813046, **1-4 (9th Cir. July 23, 2008);
United States v. Zuniga-Guerrero, 460 F.3d 733, 739 (6th Cir. 2006), cert. denied,
127 S. Ct. 1011 (2007); United States v. Duarte, 327 F.3d 206, 207 (2d Cir. 2003).
We find Orihuela persuasive and now join our sister circuits in holding that a
§ 843(b) conviction constitutes a “drug trafficking offense” under
§ 2L1.2(b)(1)(A)(i).
In Orihuela, the court analogized the definition of “drug trafficking
offense” with the definition of “controlled substance offense” under the career
criminal enhancement provision in § 4B1.2(b), noting that § 4B1.2(b) defines the
term “controlled substance offense”1 in substantially the same way as § 2L1.2
defines the term “drug trafficking offense” and, thus, decisions interpreting
§ 4B1.2(b) would therefore be analogous authorities. 320 F.3d at 1304; see also
United States v. Le, 512 F.3d 128, 135 & n.3 (5th Cir. 2007) (recognizing that
cases discussing § 4B1.2(b)’s definition of “controlled substance offense” and
§ 2L1.2’s definition of “drug trafficking offense” are cited interchangeably
because the language is identical), petition for cert filed (No. 07-10662) (Apr. 28,
2008). The court noted that several circuits had recognized that telephone
facilitation offenses were controlled substance offenses under § 4B1.2(b) and that
the Sentencing Commission had codified these findings in U.S.S.G. App. C,
Amend. No. 568 (1997). Oriheula, 320 F.3d at 1304. It also determined that
because a § 843(b) offense involves the facilitation of an underlying controlled
1
Section 4B1.2 defines “controlled substance offense” as “an offense under
federal or state law, punishable by imprisonment for a term exceeding one year,
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.” § 4B1.2(b).
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substance offense, it results in the offender’s aiding and abetting of the
underlying offense, which thereby constitutes engaging in a controlled substance
offense. Id. at 1304-05; cf. United States v. Mankins, 135 F.3d 946, 949 (5th Cir.
1998) (holding that an element of a § 843(b) offense is the defendant’s
commission of an independent drug crime or facilitation of such a crime).
Pillado’s indictment clearly charged that he facilitated the commission of an
independent drug crime in violation of § 843(b). Accordingly, the district court’s
imposition of the 16-level enhancement was a proper interpretation and
application of the Guidelines.
Pillado additionally argues, for the first time on appeal, that in applying
the enhancement, the district court erred in adopting the probation officer’s
response to his sentencing objection and, additionally, that the district court
erred in relying on the indictment and PSR as factual bases for the
enhancement. Review of these arguments is for plain error only. United States
v. Mares, 402 F.3d 511, 520 (5th Cir. 2005). The facts charged in the applicable
paragraph of the indictment are plainly sufficient to support the enhancement;
that Pillado facilitated the commission of an independent drug crime, conspiracy
to distribute marijuana and cocaine. See Mankins, 135 F.3d at 949. He has
therefore shown no error on the part of the district court in this regard.
Pillado also has not shown that the district court plainly erred in adopting
the probation officer’s response to his sentencing objection, which response
analogized the definition of “drug trafficking offense” in § 2L1.2 with the
definition of “controlled substance offense” in § 4B1.2(b). As previously
discussed, § 4B1.2(b)’s definition of “controlled substance offense” is the same
language used in the definition of “drug trafficking offense” under § 2L1.2, cmt.
(n.1(B)(iv)), and, therefore, cases discussing these definitions are cited
interchangeably. See Le, 512 F.3d at 135 & n.3.
To the extent that the district court relied on the PSR in support of the
enhancement, such reliance constituted error. Garza-Lopez, 410 F.3d at 274.
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Nevertheless, because the indictment alone provided a sufficient basis for the
enhancement, the error did not affect Pillado’s substantial rights because he
suffered no prejudice therefrom. Therefore, he has not demonstrated reversible
plain error. See Mares, 402 F.3d at 520-21.
For the foregoing reasons, the judgment of the district court is
AFFIRMED.
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