IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
December 31, 2008
No. 07-51336
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
ALFREDO GUTIERREZ
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:07-CR-411-4
Before SMITH, GARZA, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Alfredo Gutierrez pled guilty to conspiracy to possess with intent to
distribute 100 kilograms or more of marijuana and possession with intent to
distribute 100 kilograms or more of marijuana. Pursuant to U.S.S.G. § 4B1.1,
the career offender provision, the district court sentenced Gutierrez to 262
months in prison, based in part on a previous New Mexico guilty plea conviction
for distribution of marijuana by possession with intent to distribute. On appeal,
Gutierrez asserts that the district court erred in sentencing him as a career
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 07-51336
offender because neither his New Mexico conviction nor his instant conviction
qualifies as a “controlled substance offense.”
A defendant can be classified as a career offender if (1) he was at least 18
years old at the time of the commission of the instant offense; (2) the instant
offense is either a crime of violence or a controlled substance offense; and (3) he
has at least two prior felony convictions that were either crimes of violence or
controlled substance offenses. U.S.S.G § 4B1.1(a). Section 4B1.2(b) of the
Guidelines defines a “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 a counterfeit substance) or the possession of a controlled
substance (or a counterfeit substance) with intent to manufacture,
import, export, distribute, or dispense.
The New Mexico statute at issue provides in relevant part, “[e]xcept as
authorized by the Controlled Substances Act, it is unlawful for a person to
intentionally distribute or possess with intent to distribute a controlled
substance or a controlled substance analog. . . .” N.M. Stat. Ann. § 30-31-22(A)
(1978). Gutierrez specifically argues that the statute is overly broad because it
prohibits “controlled substance analogs,” which are not mentioned in the
Guidelines’ definition of a controlled substance. A de novo review, see United
States v. Zuniga-Peralta, 442 F.3d 345, 347 (5th Cir. 2006), reveals that
Gutierrez’s argument is without merit.
Under the categorical approach set forth in Taylor v. United States, 495
U.S. 575, 602 (1990), a district court must look to the elements of a prior offense,
rather than to the facts underlying the conviction, when classifying a prior
offense for sentence enhancement purposes. United States v. Garza-Lopez, 410
F.3d 268, 273-74 (5th Cir. 2005). However, “[i]f a statute contains multiple,
disjunctive subsections, courts may look beyond the statute to certain conclusive
records made or used in adjudicating guilt in order to determine which
2
No. 07-51336
particular statutory alternative applies to the defendant’s conviction.” United
States v. Bonilla-Mungia, 422 F.3d 316, 320 (5th Cir. 2005) (internal quotation
marks omitted). We have held that determining whether a “drug trafficking
offense” occurred categorically falls within the “range of cases where the court
may consider information other than the statutory definition of the offense.”
Garza-Lopez, 410 F.3d at 273. We also must treat the determination of whether
a “controlled substance offense” occurred in the same manner, since the
Guidelines’ definition for “drug trafficking offense” is identical to the Guidelines’
definition for “controlled substance offense.” See United States v. Ford, 509 F.3d
714, 718 n.2 (5th Cir. 2007) (comparing “controlled substance offense” under
U.S.S.G. § 4B1.2(b) cmt. n.1 and “drug trafficking offense” under U.S.S.G. §
2L1.2 cmt. n. 1(B)(iv)), cert. denied, 129 S. Ct 44 (2008).
Therefore, in this case, the district court was free to consider the statutory
definition of the offense, the charging paper, jury instructions, the written plea
agreement, the guilty-plea transcript, and factual findings by the trial judge to
which the defendant assented. Bonilla-Mungia, 422 F.3d at 320. The district
court was not permitted, however, to rely on the PSR’s characterization of the
offense for enhancement purposes. See Garza-Lopez, 410 F.3d at 274.
This court need not determine whether the prohibition of “controlled
substance analogs” makes the New Mexico statute overly broad because
Gutierrez was charged in the state court indictment with conduct that actually
falls within the definition of a controlled substance offense as that term is
defined in § 4B1.2 of the Guidelines. The indictment charged Gutierrez with
“knowingly and intentionally transfer[ring], caus[ing] the transfer, attempt[ing]
to transfer or possess[ing] with intent to transfer marijuana.” According to the
judgment of conviction, Gutierrez pled guilty to the offense of distribution of
marijuana by possession with intent to distribute, a fourth degree felony. The
language of both the indictment and the judgment clearly indicates that
Gutierrez’s conviction involved actual marijuana and not a “controlled substance
3
No. 07-51336
analog.” Because the conduct described in Gutierrez’s state court marijuana
indictment and judgment of conviction is equivalent to the offense of possession
of a controlled substance with intent to distribute, the district court did not err
in enhancing Gutierrez’s offense level under § 4B1.1(a). See Ford, 509 F.3d at
717.
Gutierrez argues for the first time that the district court erred in relying
exclusively on the statutory definition and the judgment of conviction to
determine whether his New Mexico conviction was a “controlled substance
offense.” He asserts that the district court was required to examine the charging
document and the jury instructions before making a decision. As we have noted,
under the modified categorical approach, the district court was permitted to look
beyond the elements of the offense and consider other conclusive documents such
as the charging paper, jury instructions, the written plea agreement, the guilty-
plea transcript, and factual findings by the trial judge to which the defendant
assented. See Bonilla-Mungia, 422 F.3d at 320. However, there is no
requirement that the district court must review all of these alternative
documents or must specifically review the charging instrument and the jury
instructions. Here, the district court properly considered the judgment of
conviction, which expressly states that Gutierrez pled guilty to distribution of
marijuana by possession with intent to distribute, and the statutory definition
of the offense to conclude that Gutierrez’s prior New Mexico conviction qualified
as a controlled substance offense. See id.
In addition, Gutierrez argues for the first time that his instant conviction
for conspiracy to possess with intent to distribute 100 kilograms or more of
marijuana does not qualify as a “controlled substance offense” under the
Guidelines because conspiracy is an inchoate crime. However, a “controlled
substance offense” includes the offenses of aiding and abetting, conspiring, and
attempting to commit such offenses. U.S.S.G. § 4B1.2(b), cmt. n.1. Accordingly,
the district court did not commit error, plain or otherwise, in sentencing
4
No. 07-51336
Gutierrez as a career offender. United States v. Baker, 538 F.3d 324, 332 (5th
Cir. 2008), petition for cert. filed (Dec. 2, 2008) (No. 08-7559).
AFFIRMED.
5