United States Court of Appeals
Fifth Circuit
F I L E D
In the November 29, 2005
United States Court of Appeals Charles R. Fulbruge III
for the Fifth Circuit Clerk
_______________
m 05-10323
_______________
UNITED STATES OF AMERICA,
Plaintiff-Appellee.
VERSUS
ISMAEL PALACIOS-QUINONEZ,
Defendant-Appellant,
_________________________
Appeal from the United States District Court
for the Northern District of Texas
m 7:04-CR-12-ALL
______________________________
Before DAVIS, SMITH, and DENNIS, United States illegally following his removals
Circuit Judges. in 1995 and 2000. At sentencing, his base of-
fense level of 8 was increased by a sixteen-lev-
JERRY E. SMITH, Circuit Judge: el enhancement pursuant to U.S.S.G. § 2L1.2-
(b)(1)(A) (2004) because he had unlawfully re-
Ismael Palacios-Quinonez appeals his sen- mained in the United States after being con-
tence. Finding no reversible error, we affirm. victed in 1992 of a crime of violence and in
1990 of a felony drug trafficking offense for
I. which the sentence imposed was greater than
Palacios-Quinonez is a Mexican national 13 months. The enhancement was based on
who pleaded guilty of having reentered the his California convictions of “possession for
sale” of cocaine and assault causing great serve the error for appeal, so we review only
bodily injury. for plain error. See United States v. Mares,
402 F.3d 511, 516, 520 (5th Cir.), cert. de-
Based on the new offense level, Palacios- nied, 126 S. Ct. 43 (2005).
Quinonez’s guidelines sentence range was
46-57 months’ imprisonment and two to three To establish plain error, Palacios-Quinonez
years’ supervised release. He objected to the must demonstrate that (1) there is an error,
16-level enhancement (arguing that his Cali- (2) that is plain by being clear or obvious, and
fornia offenses were not covered by § 2L1.2- (3) that affects his substantial rights. United
(b)(1)(A)). He also contended that 8 U.S.C. States v. Olano, 507 U.S. 725, 731-37 (1993).
§ 1326(b)(1) and (2) should be treated as sep- Absent the enhancement, Palacios-Quinonez’s
arate offenses instead of sentencing factors and guidelines sentencing range would have been
that Almendarez-Torres v. United States, 523 18-24 months, substantially less than the 46
U.S. 224, 239-47 (1998), was incorrectly months he received, so an error in the applica-
decided and should be overruled. tion of the enhancement would affect his sub-
stantial rights. See United States v. Garza-Lo-
At sentencing, which occurred after the is- pez, 410 F.3d 268, 275 (5th Cir.), cert. denied,
suance of United States v. Booker, 125 S. Ct. 126 S. Ct. 298 (2005). Accordingly, the is-
738 (2005), the district court adopted the sen- sues for this court are whether the district
tence range found in the presentence report court erred in finding that Palacios-Quinonez’s
and sentenced Palacios-Quinonez to 46 conviction was for a drug trafficking offense
months’ imprisonment and two years’ super- and whether the error was plain. See Olano,
vised release. On appeal, Palacios-Quinonez 507 U.S. at 731-37.
raises four issues: (a) whether his California
conviction of aggravated assault qualifies as a Pursuant to § 2L1.2(b)(1)(A)(i), a six-
crime of violence; (b) whether a conviction of teen-level enhancement applies if, before re-
“purchase for purposes of sale” of cocaine moval, the defendant was convicted of a felony
constituted a drug trafficking offense under that was “a drug trafficking offense for which
§ 2L1.2(b)(1)(A); (c) whether § 1326(b)(1) the sentence imposed exceeded 13 months.”
and (2) should be treated as separate offenses Under this provision, a drug trafficking offense
instead of sentencing factors; and (d) whether “means an offense under federal, state, or local
Almendarez-Torres should be overruled. law that prohibits the manufacture, export,
distribution, or dispensing of a controlled
I. substance (or a counterfeit substance) or the
Palacios-Quinonez contends, for the first possession of a controlled substance (or a
time on appeal, that his California conviction counterfeit substance) with intent to manufac-
of possession for sale of cocaine does not ture, import, export, distribute, or dispense.”
qualify as a drug trafficking offense. In the § 2L1.2 cmt. n.(1)(B)(iv). To determine
district court he objected to this conviction on whether a conviction qualifies as a drug traf-
the ground that he did not receive a sentence ficking offense under § 2L1.2(b)(1)(A)(i), we
of thirteen months or more. Because he did follow Taylor v. United States, 495 U.S. 575,
not challenge the application of the six- 602 (1990), which directs us, when classifying
teen-level enhancement on the same ground as a prior offense for sentence enhancement
he challenges it in this court, he did not pre- purposes, to look to the elements rather than
2
to the facts underlying the conviction. See maintaining control over, or the right to con-
Garza-Lopez, 410 F.3d at 273. But, in some trol, controlled substances.” Id. (citing People
cases, including those involving a determina- v. Showers, 440 P.2d 939 (Cal. 1968); Califor-
tion of whether a drug trafficking offense was nia Jury Instructions-Criminal 12.01). Simi-
committed, a court may also consider three larly, a completed purchase transfers the “le-
additional factors: the statutory definition of gal” right to control the substance from the
the offense, the charging paper, and the jury seller to the purchaser or his agents.
instructions. Id.
Palacios-Quinonez argues that under Cali-
Both parties agree that Palacios-Quinonez fornia law, namely Armstrong v. Superior
was convicted under CAL. HEALTH & SAFETY Court, 217 Cal. App. 3d 535, 539-40 (1990),
CODE § 11351, and the government has sup- “it is possible to purchase controlled substanc-
plemented the record to show that the convic- es without actually or constructively possess-
tion was under that statute. One can be con- ing them.” This theory is without merit.
victed under that statute if he either “possesses
for sale” or “purchases for purposes of sale” First, Armstrong dealt with a situation in-
certain narcotics, including cocaine. Palacios- volving an inchoate offense under a different
Quinonez contends that although “possession statute (possession of a controlled substance).
for sale” qualifies as a drug trafficking offense, There, evidence existed that the undercover
“purchase for sale” does not, and thus the en- police officer selling the drugs was not willing
hancement was improper because it is impossi- to let the purchaser exercise his right to con-
ble to determine under which prong of the trol the drugs. Id. at 538 (noting that the de-
statute he was convicted. We concur in that fendant was arrested before delivery of the
narrow assertion1 but do not agree that “pur- drugs and that the seller testified he was not
chase for purposes of sale” does not involve “going to . . . let a pound of methamphetamine
“possession” with intent to distribute as re- walk away”). As Armstrong clarifies, its hold-
quired by the guidelines. ing advances the unremarkable proposition
that an (uncompleted) attempt to posses is not
We are persuaded by United States v. Es- the same as (completed) possession, actual or
trada-Soto, 113 Fed. Appx. 223, 224 (9th Cir. constructive:
2004) (mem.), cert. denied, 125 S. Ct. 1430
(2005), that “‘[p]urchase’ of cocaine for the Here, there is evidence petitioner exercised
purpose of sale is not obviously different from, some control over the physical setting in
or broader than,” constructive possession. In which the sale was to take place. He initi-
California, “constructive possession includes ated the sale process of the drugs. He
agreed to meet the officer at a particular lo-
cation. He paid Officer Heggestuen. He
1
There is no evidence that Palacios-Quinonez was prepared to take immediate physical
was convicted under the “possession” prong of the possession of the drugs. We believe, and
statute, other than his statement at a hearing in the defendant agrees, that while such actions
instant case that drugs that were not his were found
may establish the offense of attempted pos-
in his car. That statement is not proper evidence
session of a controlled substance . . ., they
for this court. The abstract of judgment is also
inconclusive and in any event is not proper ev-
do not demonstrate he was exercising “con-
idence for us to consider under Taylor. trol” over the contraband itself for purposes
3
of finding constructive possession. He did merely an “attempted purchase” of a con-
not direct the contraband be moved within trolled substance.4
a room. Nor did he take any other action
which exhibits control over the drugs. Second, Armstrong’s reasoning is consis-
tent with our position that purchase of cocaine
Id. at 540.2 for the purpose of sale is not obviously differ-
ent from, or broader than, constructive posses-
In fact, the Armstrong court, id. at 540 n.2, sion. Because “purchase” involves the transfer
expressly declined to decide whether someone, of a right to control from the seller to the
like the defendant there, lacking constructive buyer, a transaction in which the “transfer” is
possession, could ever be convicted of pur- not completed is not a purchase, but only an
chase for sale: “This opinion is not intended to attempted purchase.
resolve the viability of a prosecution under the
same or similar facts as a purchase for pur- In most cases, the right to control probably
poses of sale.” Because of this express dis- transfers close to the moment when an agree-
claimer, we do not find persuasive the view ment is reached and payment is delivered, even
expressed in United States v. Navarro-Coyazo, if actual delivery has not occurred. In a few
108 Fed. Appx. 490, 491 n.1 (9th Cir. 2004) cases, however, where there is an impossibility
(mem.), that Armstrong “impl[ied] that a of performance, as for instance where the
defendant who arranges to buy, and pays for, seller never intends to deliver the drugs or
a controlled substance, but who never con- intends to deliver a substance that is not con-
structively or actually possesses the substance, trolled, a transfer cannot be said to occur.
could nonetheless be prosecuted for ‘purchas- Only an attempted purchase can be said to oc-
ing’ the drug.”3 To the contrary, the Arm- cur in those cases. Therefore, absent the
strong court specifically avoided deciding transfer of the right to control the drugs, there
whether an agreement to buy, coupled with is neither a “purchase with intent to sell” nor
payment, constitutes “purchase” of a con- constructive possession, unless the purchaser
trolled substance, or whether, instead, it is actively performs some other act that indicates
control or right to control.
2
See also Estrada-Soto, 113 Fed. Appx. at 224 For instance, if a purchaser paid for seven
(also distinguishing Armstrong because it dealt vials of cocaine but received seven vials of
with an inchoate crime). We agree with the Es- sugar, he cannot be said to be guilty of “pur-
trada-Soto court that People v. Howard, 33 Cal. chase” of cocaine. In other words, he could
App. 4th 1407 (1995), is distinguishable because, not be said to have purchased cocaine, because
like Armstrong, it involved a different statute and he did not have any legal “right to control” the
an inchoate crime (conspiracy). nonexistent cocaine. He could be viewed as
3
Navarro-Coyazo’s reliance on California Jury
InstructionsSSCriminal 12.01 is also questionable, 4
The decision in United States v . Bowman,
because the instructions merely say that either pur- 116 Fed. Appx. 840 (9th Cir. 2004) (mem.), is also
chase or actual or constructive possession needs to distinguishable, because there the government
be proven for purposes of the statute. This does conceded that a statute that criminalized both pos-
not exclude the possibility that a purchase actually session and purchase for sale was overbroad, see
involves constructive possession. id. at 843.
4
having attempted to purchase cocaine. Palacios-Quinonez relies on United States
v. Garza-Lopez, 410 F.3d 268 (5th Cir.), cert.
We are not suggesting that a simple delay in denied, 126 S. Ct. 298 (2005), to suggest that
delivery of drugs means that one could never purchases for sale do not fall within the defini-
be said to have “purchased” the drugs. Trans- tion of a drug trafficking offense. The Garza-
fer of control does not require an actual “deliv- Lopez panel, however, only decided that nei-
ery” of a drug. Although actual delivery helps ther “the transportation of a controlled sub-
prove control, “control” (and thus possession stance for personal use” nor “offers to trans-
and purchase) are broader than “delivery.” A port, sell, furnish, administer or give away a
buyer could have “constructive possession” controlled substance” is covered by the defini-
before actual delivery: “Even within a con- tion of drug trafficking. Id. at 274.
trolled setting or its equivalent, a defendant
might so directly verbalize disposition or Accordingly, the fact that “possession with
movement of the drug as to warrant the infer- intent to distribute” under the guidelines does
ence he possesses it.” Armstrong, 217 Cal. not encompass an “offer to sell” has no effect
App.3d at 539. on whether it encompasses a “purchase for
sale.” Someone who offers to sell need not
For instance, buyer B could directly verbal- have possession as required by the guidelines.
ize disposition of the drug directly from A (B’s Rather, one can misrepresent ownership or
seller) to C, a third party who in turn paid B control of the offered goods, such as where
for the drugs. The purchase would be com- one is offering to sell the proverbial Brooklyn
pleted without B’s ever obtaining actual deliv- Bridge. By contrast, to accomplish a purchase
ery. But, because B exercised control of the of a drug for sale, one must have at least con-
goods by selling them, he would be found to structive possession. This offense, unlike a
have had constructive possession under Arm- mere offer to sell, would satisfy the elements
strong’s guidance.22 Where performance is of “possession with intent to distribute.”
impossible, however, the right to control is not
transferred, and neither “purchase” nor “con- Finally, we reject Palacios-Quinonez’s ar-
structive possession” can take place.23 gument that the definition of “possession” un-
22 23
See also United States v. Virciglio, 441 F.2d (...continued)
1295 (5th Cir. 1971) (finding constructive posses- Possession is distinguishable from purchase.
sion where defendant never touched a weapon that Palacios-Quinonez would have us hold that pur-
he purchased from a third party and arranged to chase is broader than possession; but we reach the
sell to undercover officer, because the sale to the opposite conclusion. A purchaser is someone with
officer indicated that defendant had control over the a clear legal right to control acquired through
weapon). transfer. A possessor, however, could be, inter
alia, (1) a purchaser, (2) someone with legal right
23
Palacios-Quinonez argues that if we read to contr ol who did not acquire the legal right
“purchase for purposes of sale” always to imply through transfer (e.g., manufacturer), (3) someone
constructive possession, we render the phrase “pur- with actual control but who does not have a legal
chase for purposes of sale” meaningless. We right to control (e.g., a thief), or (4) someone with
disagree. actual control who does not have a clear legal right
(continued...) to control (e.g., a finder).
5
der the guidelines does not encompass con- admits, the Court held in Almendarez-Torres,
structive possession because, he contends, un- 523 U.S. at 229-47, that § 1326(b)(1) and &
der the plain meaning of the word “posses- (2) are sentencing factors, not separate of-
sion,” one who exercises possession is not lit- fenses, and that they are constitutional. Thus,
erally “in possession.” It is well established construing § 1326(b)(1) and (2) as separate of-
that possession encompasses constructive pos- fenses would require us to declare that Al-
session.24 Because we conclude that Palacios- mendarez-Torres is overruled. To the con-
Quinonez was convicted of a drug trafficking trary, we abide by Almendarez-Torres “unless
offense that warrants a sixteen-level enhance- and until the Supreme Court itself determines
ment, we need not decide whether his aggra- to overrule it.” United States v. Dabeit, 231 F
vated assault conviction constituted a crime of .3d 979, 984 (5th Cir. 2000) (quotation marks
violence. omitted). The Court did not overrule Almen-
darez-Torres in Haley. See Haley, 541 U .S.
II. at 395-96.
Palacios-Quinonez also urges that 8 U.S.C.
§ 1326(b)(1) and (2) should be treated as sep- In the alternative, Palacios-Quinonez avers
arate offenses instead of sentencing factors. that § 1326(b)(1) and (2) are unconstitutional
He acknowledges that this argument was re- in light of Apprendi v. New Jersey, 530 U .S .
jected in Almendarez-Torres, but he asserts 466 (2000), and that Almendarez-Torres was
that a “critical component of the Almendar- wrongly decided. He concedes that his alter-
ez-Torres holding” was repudiated in Dretke v native argument is foreclosed and raises it to
. Haley, 541 U .S . 386 (2004). He contends preserve it for further review. We agree that
that Haley suggested that the continuing vitali- the issue is foreclosed.
ty of Almendarez-Torres holding is a difficult
constitutional question “to be avoided if possi- The judgment of sentence is AFFIRMED.
ble.” Relying on Haley, Palacios-Quinonez ar-
gues that this court should construe § 1326-
(b)(1) and (2) as separate offenses to avoid the
difficult constitutional question of the continu-
ing vitality of Almendarez-Torres.
Palacios-Quinonez’s argument based on
Haley, although novel, is without merit. As he
24
See, e.g., United States v. Virciglio, 441 F.2d
1295 (5th Cir. 1971) (sustaining conviction of pos-
session of unregistered firearm where defendant
exercised only constructive possession); United
States v. Felts, 497 F.2d 80, 82 (5th Cir. 1974)
(sustaining conviction of drug possession with
intent to distribute where defendant had only
constr uctive possession when he arranged for his
friends to sell drugs to undercover police agent
while he went to a concert).
6
United States v. Palacios-Quinonez
Court: Court of Appeals for the Fifth Circuit
Date filed: 2005-11-29
Citations: 431 F.3d 471
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