United States v. Jose Hernandez-De Aza
536 F. App'x 404
5th Cir.2013Background
- Hernandez, a deported noncitizen, pleaded guilty to illegal re-entry (8 U.S.C. § 1326) and a PSR listed three prior New York controlled-substance convictions. The probation officer applied the largest applicable Guideline enhancement: a 16-level increase under U.S.S.G. § 2L1.2(b)(1)(A) for a 2003 conviction for criminal sale of a controlled substance (attempted, N.Y. Penal Law § 220.31).
- The PSR set a base offense level of 8, adjustments left Hernandez with offense level 21 and criminal-history category IV, producing a Guidelines range of 57–71 months; the district court sentenced him to 57 months.
- Hernandez objected that the 16-level enhancement was improper because the New York statute is broader than the Sentencing Guidelines’ definition of a “drug trafficking offense” (arguing particularly that New York’s definition of “sell” — which includes “give” and “dispose of” — is overbroad). He also argued the government failed to produce the required Shepard/Taylor-type documents, but did not contest sentence length on appeal.
- The district court found the New York statute categorically qualified as a drug-trafficking offense (and that the documentary record established conviction under that statute) and imposed the enhancement.
- On appeal the Fifth Circuit reviewed de novo the legal question but applied plain-error review to Hernandez’s overbreadth argument because he failed to make a specific legal argument below; the court affirmed, holding any error was not plain because the issue is subject to reasonable dispute.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether New York Penal Law § 220.31 (criminal sale, includes "give" and "offer to give") is categorically a "drug trafficking offense" under U.S.S.G. § 2L1.2 | Hernandez: NY statute is broader than the Guidelines’ definition because it criminalizes "give" and "offer to give," which may not equal "distribution or dispensing" under the post-2008 Guidelines | Government: NY statute’s terms (sell, exchange, give, dispose, offer or agree) fit within the Guidelines’ definition of distribution/dispensing; post-2008 amendments include offers to sell | Affirmed: Court held the issue was reasonably disputable; any error was not “plain,” so the district court’s categorical determination stands |
Key Cases Cited
- Taylor v. United States, 495 U.S. 575 (establishing the categorical approach for predicate-offense classification)
- Descamps v. United States, 133 S. Ct. 2276 (distinguishing divisible statutes and authorizing modified categorical approach)
- United States v. Henao-Melo, 591 F.3d 798 (5th Cir. standard for review of prior-conviction classification)
- United States v. Garza-Lopez, 410 F.3d 268 (discussing categorical approach in prior-conviction context)
- United States v. Marban-Calderon, 631 F.3d 210 (holding statutes prohibiting delivery/offer to sell qualify as drug-trafficking under Guidelines)
- United States v. Ellis, 564 F.3d 370 (describing when state definitions broader than generic definitions preclude enhancement)
- United States v. Olano, 507 U.S. 725 (plain-error review framework)
- Puckett v. United States, 556 U.S. 129 (clarifying plain-error prong that error must be "clear or obvious")
- Moncrieffe v. Holder, 133 S. Ct. 1678 (Supreme Court decision on a similar statute noted as potentially influential)