United States v. Martinez-Lugo

773 F.3d 678

UNITED STATES of America, Plaintiff–Appellee

v.Juan Francisco MARTINEZ–LUGO, Defendant–Appellant.

No. 13–40924.

United States Court of Appeals, Fifth Circuit.

Dec. 11, 2014.

Paula Camille Offenhauser, Assistant U.S. Attorney, Renata Ann Gowie, Assistant U.S. Attorney, Katherine Lisa Haden, Assistant U.S. Attorney, U.S. Attorney's Office, Houston, TX, for Plaintiff–Appellee.

Marjorie A. Meyers, Federal Public Defender, Philip G. Gallagher, Assistant Federal Public Defender, Michael Lance Herman, Assistant Federal Public Defender, Federal Public Defender's Office, Houston, TX, for Defendant–Appellant.

Appeal from the United States District Court for the Southern District of Texas.

Before DAVIS, DENNIS, and COSTA, Circuit Judges.

Opinion

W. EUGENE DAVIS, Circuit Judge:

Defendant–Appellant Juan Francisco Martinez–Lugo appeals from the district court's application of a 16–level sentence enhancement pursuant to U.S.S.G. ¶ 2L1.2(b)(1)(A)(i) for his having been removed following a conviction for a drug trafficking offense for which the sentence was greater than 13 months based upon Martinez's 2002 Georgia conviction for possession with intent to distribute marijuana. For the reasons set out below, we VACATE the sentence and REMAND.

FACTS AND PROCEEDINGS

Martinez–Lugo was charged in an indictment with being unlawfully present in the United States following removal. He pleaded guilty to the indictment without the benefit of a written plea agreement. In the Presentence Report (“PSR”), the Probation Office determined that Martinez–Lugo's base offense level was eight. It applied a 16–level enhancement pursuant to U.S.S.G. ¶ 2L1.2(b)(1)(A)(i) for having been removed following a conviction for a drug trafficking offense for which the sentence was greater than 13 months. The recommendation was based on Martinez–Lugo's 2002 Georgia conviction for possession with intent to distribute marijuana, for which Martinez–Lugo was sentenced to five years of imprisonment with two of those years probated.

Applying a two-level reduction for acceptance of responsibility, the Probation Office determined that Martinez–Lugo's total offense level was 22. Based upon Martinez–Lugo's total offense level of 22 and criminal history category of IV, it calculated that his guidelines sentence range was 63–78 months of imprisonment and that his guidelines sentence range would be 57–71 months of imprisonment if he were granted an additional one-level reduction for acceptance of responsibility. As an attachment to the PSR, the Probation Office included the accusation, guilty plea documentation, and final judgment from Martinez–Lugo's 2002 conviction, and those documents showed that Martinez–Lugo had been convicted under Ga.Code Ann. § 16–13–30(j)(1) (2002).

When the case was first called for sentencing, Martinez–Lugo raised an objection to the 16–level enhancement on the ground that his prior Georgia conviction did not qualify as a “drug trafficking offense” under the Supreme Court's reasoning in Moncrieffe v. Holder, ––– U.S. ––––, 133 S.Ct. 1678, 185 L.Ed.2d 727 (2013). The district court granted Martinez–Lugo a continuance, and he subsequently filed a written objection to the PSR on that basis.

The district court overruled Martinez–Lugo's objection. The Government moved for the additional one-level reduction for acceptance of responsibility, and the district court granted the motion. The district court additionally ruled that Martinez–Lugo's criminal history category was “artificially exaggerated” and that a criminal history category of III was more accurate. Based upon a total offense level of 21 and criminal history category of III, it determined that Martinez–Lugo's guidelines sentence range was 46–57 months of imprisonment. It sentenced Martinez–Lugo to 46 months of imprisonment without a term of supervised release. Martinez–Lugo filed a timely notice of appeal on the basis that the district court misapplied the 16–level sentence enhancement for a “drug trafficking offense” under § 2L1.2(b)(1)(A)(i).

STANDARD OF REVIEW

Martinez–Lugo is not the first appellant to argue that, following Moncrieffe,a conviction “for giving away or offering to give away [i.e., for no remuneration] a controlled substance” does not constitute “a drug trafficking offense under ... § 2L1.2(b)(1)(A)(i).”¹ He is, however, the first to have preserved the error by raising the objection at the district court, so we are not limited to plain error review, which must deny relief where, as here, “the issue is subject to reasonable debate and the error is not readily apparent.”²

Because Martinez–Lugo preserved his objection to the sentence enhancement, “[w]e review the district court's interpretation and application of the sentencing guidelines de novo and its findings of fact for clear error.”³ “We review a district court's conclusion that a prior state conviction constitutes a drug trafficking offense de novo. ”⁴

DISCUSSION

On appeal, Martinez–Lugo renews his argument that his prior conviction under Ga.Code Ann. § 16–13–30(j)(1) (2002) does not constitute a “drug trafficking offense” for purposes of applying the sentence enhancement of § 2L1.2(b)(1)(A)(i). Martinez–Lugo points to the Supreme Court's emphasis in Moncrieffe that “trafficking” generally requires remuneration,⁵ and he argues that the Georgia statute is overbroad because it also criminalizes possession with intent to distribute for no remuneration.⁶ On the other hand, the Application Note to § 2L1.2(b)(1)(A)(i) seems to define as a “drug trafficking offense” precisely the type of conviction at issue here.

Section 2L1.2(b)(1)(A)(i) provides:

(b) Specific Offense Characteristic

(1) Apply the Greatest:

If the defendant previously was deported, or unlawfully remained in the United States, after—

(A) a conviction for a felony that is (i) a drug trafficking offense for which the sentence imposed exceeded 13 months; ... increase by 16 levels if the conviction receives criminal history points under Chapter Four ....⁷

Section 2L1.2(b)(1)(A)(i) itself does not define “drug trafficking offense,” but the Application Note to § 2L1.2(b)(1)(A)(i) states:

“Drug trafficking offense” means an offense under federal, state, or local law that prohibits the manufacture, import, export, distribution, or dispensing of, or offer to sell 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.⁸

The Georgia statute under which Martinez–Lugo was convicted provides:

(j)(1) It is unlawful for any person to possess, have under his control, manufacture, deliver, distribute, dispense, administer, purchase, sell, or possess with intent to distribute marijuana.⁹

We must determine whether the Georgia statute, which on its face seems to fall directly within the Application Note to § 2L1.2(b)(1)(A)(i), is in fact a “drug trafficking offense” subject to the 16–level enhancement.

I. Categorical and Modified Categorical Approaches

To determine whether a prior conviction qualifies as a drug trafficking offense, this court employs the categorical approach set forth in Taylor v. United States, 495 U.S. 575, 602, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), comparing the elements of the prior offense—rather than the facts underlying the conviction—with the definition of a “drug trafficking offense” under § 2L1.2(b)(1)(A).¹⁰ “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. Accordingly, our inquiry centers on whether the least-culpable act that would violate [the state statute] would also qualify as ‘drug trafficking’ for purposes of § 2L1.2.”¹¹

If the statute at issue has disjunctive elements, this court may apply a modified categorical approach to ascertain which of the disjunctive elements formed the basis of the conviction.¹² In making this determination, this court may consider “the statutory definition, charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented.”¹³ If the statute cannot be narrowed, this court considers “whether the least culpable act constituting a violation of that statute constitutes” a drug trafficking offense for purposes of § 2L1.2(b)(1)(A)(i).¹⁴

Martinez–Lugo does not dispute that his prior conviction was a felony under Georgia law, that he received criminal history points, or that the sentence imposed exceeded 13 months. Additionally, the parties agree that the Shepard documents only narrow down Martinez–Lugo's prior conviction to a conviction for possession of marijuana with intent to distribute under Ga.Code Ann. § 16–13–30(j)(1). On its face, this would not seem to be a problem because, as noted above, the Application Note to § 2L1.2(b)(1)(A)(i) explicitly defines “drug trafficking offense” to include “possession of a controlled substance ... with intent to ... distribute.” Thus, this appears at first blush to be an easy case. It is not so.

We must give great weight to the commentary to the Guidelines, such as the Application Note at issue here, particularly where it interprets a Guideline. Indeed, “[f]ailure to follow such commentary could constitute an incorrect application of the guidelines, subjecting the sentence to possible reversal on appeal.”¹⁵ That deference is not limitless, however: “We have reason to avoid giving effect to an interpretive or explanatory application note only if we determine that the note ‘is inconsistent with, or a plainly erroneous reading of’ the Guideline.”¹⁶ In essence, Martinez–Lugo argues that, following the Supreme Court's opinion in Moncrieffe, there is now an irreconcilable tension between § 2L1.2(b)(1)(A)(i)'s simple requirement of a “drug trafficking offense” and the Application Note's inclusion of “possession with intent to...