United States v. Leonel Fajardo-Galvan
694 F. App'x 327
5th Cir.2017Background
- Defendant Leonel Fajardo-Galvan convicted under 8 U.S.C. §§ 1326(a) and (b)(2) for unlawful reentry after deportation following an aggravated-felony conviction; sentenced to 23 months.
- District court applied a 12-level U.S.S.G. § 2L1.2(b)(1)(B) enhancement based on a 2007 North Carolina conviction for possession of cocaine with intent to deliver.
- Under North Carolina law the offense’s theoretical maximum was 30 months, but the actual maximum for Fajardo-Galvan given his criminal history was 10 months.
- Fajardo-Galvan argued the conviction was not a "felony" under the Guidelines because his applicable maximum did not exceed one year; he also requested the judgment reflect conviction under § 1326(b)(1) arguing the indictment might refer to marijuana rather than cocaine.
- At sentencing his counsel conceded the 12-level enhancement was proper based on then-current Fifth Circuit law; on appeal the court reviewed the challenge for plain error and affirmed the sentence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether prior NC conviction qualified as a "felony drug trafficking offense" for a 12-level § 2L1.2(b)(1)(B) enhancement | Fajardo-Galvan: his applicable maximum was ≤12 months, so conviction is not a "felony" under the Guidelines | Government: counsel conceded at sentencing; prior Fifth Circuit precedent supported enhancement | Court: assumed possible clear error but affirmed under plain-error review because any error did not seriously affect fairness/integrity of proceedings |
| Whether the judgment should reflect conviction under § 1326(b)(1) because indictment was ambiguous about cocaine vs. marijuana | Fajardo-Galvan: ambiguity could mean marijuana, which would not be an aggravated felony under § 1326(b)(2) | Government: record shows prior conviction involved cocaine; marijuana reference was typographical | Court: no error — documentary record shows conviction involved cocaine; judgment stands |
Key Cases Cited
- United States v. Simmons, 649 F.3d 237 (4th Cir. 2011) (adopts inquiry whether particular defendant’s applicable statutory maximum exceeds one year)
- United States v. Harp, 406 F.3d 242 (4th Cir. 2005) (considered maximum for worst possible criminal history)
- Carachuri-Rosendo v. Holder, 560 U.S. 563 (2010) (limitations on "recidivist" consequences for certain convictions)
- United States v. Rodriguez, 553 U.S. 377 (2008) (statutory interpretation relevant to predicate-offense analyses)
- United States v. Wikkerink, 841 F.3d 327 (5th Cir. 2016) (plain-error standard explained)
- United States v. Morrison, 713 F.3d 271 (5th Cir. 2013) (use of record to resolve ambiguity in prior conviction offense)
- United States v. Neri-Hernandes, 504 F.3d 587 (5th Cir. 2007) (addressing documentary evidence resolving offense identity)
- United States v. Fernando-Cusco, 447 F.3d 382 (5th Cir. 2006) (plain-error review discussion)