United States v. Valentin Cortes-Tolentino
577 F. App'x 388
5th Cir.2014Background
- Valentin Cortes-Tolentino pleaded guilty to being unlawfully in the U.S. after deportation in violation of 8 U.S.C. § 1326 and was sentenced with a Guidelines enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(i).
- The enhancement was applied based on a 2005 Virginia conviction under VA. CODE ANN. § 18.2-248 for possession with intent to distribute cocaine.
- Cortes-Tolentino argued on appeal that the Virginia statute is broader than the Guidelines‟ definition of a "drug trafficking offense" because Virginia law treats "distribution" to include giving away controlled substances for no consideration.
- He contended the state-court record did not narrow his conviction to conduct that fits the § 2L1.2 trafficking definition, so the enhancement was plain error.
- He conceded appellate review is for plain error because he did not object below; thus he had to show a clear or obvious forfeited error that affected substantial rights.
- The panel concluded the issue was reasonably debatable in light of circuit precedent and recent developments, so any error was not clear or obvious and plain-error relief was not warranted.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a VA § 18.2-248 conviction qualifies as a "drug trafficking offense" under U.S.S.G. § 2L1.2(b)(1)(A)(i) | The VA statute covers giving away drugs; such conduct falls outside the Guidelines' trafficking definition, so enhancement was erroneous | Circuit precedent treats § 18.2-248 distribution as a qualifying trafficking offense; enhancement proper | Error, if any, was not plain or obvious; no plain-error relief granted |
| Whether appellate plain-error review is satisfied | The sentencing enhancement was a clear and obvious legal error affecting substantial rights | The question is reasonably debatable given precedent and post-2008 commentary; error not "clear or obvious" | Defendant fails to meet plain-error standard; judgment affirmed |
Key Cases Cited
- Moncrieffe v. Holder, 133 S. Ct. 1678 (2013) (consideration of state-law breadth when classifying convictions for immigration consequences)
- United States v. Garza–Lopez, 410 F.3d 268 (5th Cir. 2005) (treatment of distribution under § 18.2-248 in sentencing context)
- United States v. Rodriguez, 523 F.3d 519 (5th Cir. 2008) (held distribution under VA statute is a trafficking offense for Guidelines)
- United States v. Marban–Calderon, 631 F.3d 210 (5th Cir. 2011) (discussing Sentencing Commission amendment to include offers to sell)
- United States v. Henao-Melo, 591 F.3d 798 (5th Cir. 2009) (plain-error standard when sentencing enhancements not objected to below)
- Puckett v. United States, 556 U.S. 129 (2009) (standard for demonstrating plain error on appeal)
- United States v. Ellis, 564 F.3d 370 (5th Cir. 2009) (error not plain if issue is subject to reasonable debate)