United States v. Marban-Calderon
2011 U.S. App. LEXIS 870
| 5th Cir. | 2011Background
- Marban-Calderon pled guilty in October 2008 to illegal reentry (8 U.S.C. 1326).
- At sentencing in February 2009, the district court applied a 16-level enhancement under U.S.S.G. 2L1.2 for a prior felony drug trafficking offense based on a 2005 Texas conviction for delivery of a controlled substance.
- The 2008 amendment to the Sentencing Guidelines broadened the definition of drug trafficking to include offers to sell, among other elements.
- Under the 2008 Guidelines, a Texas conviction for delivery of a controlled substance (including an offer to sell) qualifies as a drug trafficking offense.
- Marban challenged retroactive application of the 2008 Guidelines as violating the Ex Post Facto Clause; the court reviews for plain error if no timely objection was raised.
- The Fifth Circuit affirms the district court’s use of the 2008 Guidelines, holding the amended definition makes the enhancement applicable.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Ex post facto applicable to amended Guidelines | Marban argues retroactive application violates Ex Post Facto Clause | Marban alleges error in applying 2008 Guidelines pre-offense | Plain error; Castillo-Estevez controls; apply 2008 Guidelines. |
| Whether Texas delivery conviction qualifies as drug trafficking under 2008 Guidelines | Marban contends it did not under pre-2008 law | Delivery to sell qualifies under 2008 amendment | Qualifies; 2008 amendment includes offers to sell. |
Key Cases Cited
- Castillo-Estevez v. United States, 597 F.3d 238 (5th Cir.2010) (plain error review of amended Guidelines permissible)
- Puckett v. United States, 129 S. Ct. 1423 (U.S. 2009) (plain error standard for sentencing errors (cited))
- Ibarra-Luna, 628 F.3d 712 (5th Cir.2010) (Ibarra-Luna foreshadows application of amended guidelines)
- Morales-Martinez v. United States, 496 F.3d 356 (5th Cir.2007) (pre-2008 understanding of Texas delivery offense)
- Gonzales v. United States, 484 F.3d 712 (5th Cir.2007) (Texas delivery conviction not always trafficking offense)