United States v. Elmer Gomez-Alvarez
2015 U.S. App. LEXIS 5192
| 5th Cir. | 2015Background
- Gomez-Alvarez pled guilty to illegal reentry after deportation under 8 U.S.C. § 1326.
- The district court applied a 16-level enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(i) based on a prior California drug offense (Cal. Health & Safety Code § 11351).
- The PSR tied the California conviction to possession for sale of heroin and listed aliases, including Jorge Ortiz.
- Complaint and Abstract of Judgment in CA BA306677 identified Jorge Ortiz as the convicted person; the Abstract did not specify the substance.
- Gomez-Alvarez objected that the conviction may not be a qualifying drug trafficking offense and that the government had not proven he was the same person as Jorge Ortiz; district court overruled.
- District court ultimately reduced criminal history classification to IV and sentenced Gomez-Alvarez to 57 months; no supervised release.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does 11351 categorically qualify as a drug trafficking offense? | Gomez-Alvarez argues 11351 is divisible; some elements do not map to a CSA-controlled substance. | Gomez-Alvarez contends the government can narrow through the modified approach using Shepard documents. | No; 11351 is not categorically a drug trafficking offense; government may proceed under the modified categorical approach. |
| Under the modified categorical approach, did the government prove the instant conviction was a qualifying offense? | Government failed to prove the substance and subdivision linked to heroin under 11351. | Shepard-approved documents (complaint/abstract) identify the conviction as possession of heroin. | Yes; documents sufficiently narrow the conviction to a qualifying offense (possession of heroin under 11351). |
| Was Gomez-Alvarez the person actually convicted under the alias Jorge Ortiz? | Burden to prove identity not met with credible documentation. | PSR and records tying Gomez-Alvarez to Jorge Ortiz are reliable and unrebutted. | Yes; district court’s finding of identity was plausible and adopted. |
Key Cases Cited
- Descamps v. United States, 133 S. Ct. 2276 (2013) (modified categorical approach for divisible statutes)
- Shepard v. United States, 544 U.S. 13 (Supreme Ct. 2005) (limits the materials used to narrow a prior conviction)
- Taylor v. United States, 495 U.S. 575 (1990) (categorical approach to prior offenses for sentence enhancements)
- Leal-Vega, 680 F.3d 1160 (9th Cir. 2012) (California 11351 broader than CSA; substance must be covered by CSA for qualification)
- Valdavinos-Torres, 704 F.3d 679 (9th Cir. 2012) (California controlled-substance schedules broader than federal)
- Palacios-Quinonez, 431 F.3d 471 (5th Cir. 2005) (plain-error approach when prong ambiguity; any qualifying prong supports enhancement)
- Martinez-Paramo, 380 F.3d 799 (5th Cir. 2004) (information/plea documents can be used to identify conviction in Shepard context)
- Castellon-Aragon, 772 F.3d 1023 (5th Cir. 2014) (advises when Shepard documents can be used to narrow scope of conviction)
- Torres-Diaz, 438 F.3d 529 (5th Cir. 2006) (reliance on charging document when no contrary record)
- Ramirez, 367 F.3d 274 (5th Cir. 2004) (sentencing records admissibility and reliability considerations)
- Gutierrez-Ramirez, 405 F.3d 352 (5th Cir. 2005) (California abstracts of judgment generally unreliable for Shepard narrowing)