Case Information
*1 Before HIGGINBOTHAM, GRAVES, and HIGGINSON, Circuit Judges.
STEPHEN A. HIGGINSON, Circuit Judge:*
Juan Jose Espinoza-Bazaldua appeals the 37-month sentence he received after pleading guilty to illegal reentry. He argues that the district court incorrectly calculated his Guidelines offense level by applying a 16-level increase for his underlying conviction in Indiana of “dealing in marijuana.” According to Espinoza-Bazaldua, this conviction is not a “drug trafficking offense” as defined by the United States Sentencing Guidelines. Because Espinoza-Bazaldua has not demonstrated that Indiana’s “dealing-in- marijuana” statute criminalizes more conduct than that captured by the Guidelines’ generic definition of “drug trafficking offense,” we affirm.
I
Espinoza-Bazaldua pleaded guilty to one count of illegal reentry in violation of 8 U.S.C. §§ 1326(a), (b). Before his scheduled sentencing hearing, the Probation Office—properly relying on the 2015 Sentencing Guidelines— calculated Espinoza-Bazaldua’s offense level according to § 2L1.2, the sentencing guideline for “unlawfully entering or remaining in the United States.” The 2015 version of § 2L1.2 directed courts to apply a base offense level of 8 and to add 16 if the defendant was deported after “a conviction for a felony that is . . . a drug trafficking offense for which the sentence imposed exceeded 13 months [and] the conviction receives criminal history points under Chapter Four [of the Sentencing Guidelines.]” U.S.S.G. § 2L1.2(b)(1)(A)(i) (2015). In its Presentence Investigation Report (PSR) to the district court, the Probation Office assigned Espinoza-Bazaldua this 16-level increase because he was deported after a felony conviction under Indiana Code § 35-48-4-10 (2005) for “[d]ealing in marijuana.” According to the PSR, Espinoza-Bazaldua was convicted of one count of dealing marijuana and sentenced to four years’ imprisonment.
Espinoza-Bazaldua objected in writing to the PSR’s calculation of his total offense level, arguing that because Indiana’s dealing-in-marijuana statute is broader than the Guidelines’ definition of “drug trafficking offense” and indivisible, the 16-level increase does not apply. Specifically, Espinoza- Bazaldua argued that Indiana’s statute was broader than the Guidelines’ definition, which includes manufacturing and delivering controlled substances, because Indiana additionally criminalizes financing the manufacture or delivery of drugs. He also argued that because Indiana law treats manufacturing, delivering, and financing as alternative factual means of committing the same offense, the statute is indivisible. Finally, Espinoza- Bazaldua argued that if the district court applied the 16-level increase, his offense level would be “excessive.” He noted that under the then-forthcoming 2016 Guidelines,his applicable advisory range would be 30 to 37 months, rather than the PSR’s calculation of 46 to 57 months under the 2015 Guidelines.
The Probation Office responded to the objections that whether Espinoza- Bazaldua’s dealing-in-marijuana conviction was a “drug trafficking offense” was a “legal issue . . . deferred to the Court for further consideration.” The Probation Office also confirmed that Espinoza-Bazaldua correctly calculated what range would apply under the 2016 Guidelines, and that if applied, the 2016 Guidelines “would benefit” him.
At sentencing, Espinoza-Bazaldua reurged his objection that because Indiana’s dealing-in-marijuana statute was broader than the Guidelines’ definition of “drug trafficking offense” and indivisible, it could not be used to increase his offense level. The district court overruled the objection, explaining: “[K]nowing[ly] or intentional[ly] provi[ding] . . . funding for either the manufacture or delivery [of drugs] would constitute aiding and abetting in the drug trafficking offense. That is encompassed by . . . the sentencing guidelines. So the objection is overruled.”
In response to the district court’s overruling the objection, Espinoza- Bazaldua’s counsel said:
Your Honor, given the Court’s ruling, I would ask the Court to, as I’ve stated[] in our departure request[,] to consider that the weight attached to the 16-level enhancement in this case is excessive.
. . . .
His prior conviction for illegal reentry [resulted in] a sentence of 24 months at that time. . . . I understand graduated punishment but I would ask the Court to consider a sentence that’s graduated and not a sentence that would be such a precipitous increase from the last sentence that he received.
By my calculation under the guidelines as they would take effect in November, his range would be 30 to 37 months. I would ask the Court to consider imposing a sentence in the guideline range that would come into effect in November.
The district court then explained that it was “grant[ing Espinoza-Bazaldua] a departure [to] sentence [him] within what would otherwise be the applicable guideline range come November[.]” In sentencing Espinoza-Bazaldua to a term of 37 months’ imprisonment, the court noted that this was “more, obviously, than the 24 [months] that you had served previously but not quite what you’re facing now.”
Espinoza-Bazaldua timely appealed, arguing only that the district court erred by applying the 16-level “drug trafficking offense” enhancement for his Indiana conviction for dealing in marijuana.
II
“We review the district court’s interpretation and application of the Sentencing Guidelines de novo.” United States v. Rodriguez-Negrete , 772 F.3d 221, 224 (5th Cir. 2014). This includes whether a prior conviction constitutes a “drug trafficking offense” under § 2L1.2. See id. at 224-25.
The Government argues that, in this case, we should find Espinoza- Bazaldua’s argument waived under the doctrine of invited error, or at least apply plain-error review because Espinoza-Bazaldua “relinquished his objection.” We find that Espinoza-Bazaldua neither invited the error he complains of nor “relinquished his objection” to that purported error.
Under the doctrine of invited error, litigants “may not complain on
appeal of errors that [they] invited or provoked the district court to commit”
unless they show that the error resulted in “manifest injustice.”
United States
v. Salazar
,
The Government insists that Espinoza-Bazaldua invited any sentencing error by asking the district court to depart from the 2015 Guidelines by considering the applicable range under the 2016 Guidelines. But the Government’s argument overlooks that the error Espinoza-Bazaldua complains of is the district court’s purported miscalculation of his Guidelines offense level (and consequently, the applicable Guidelines range)—not the substantive reasonableness of the ultimate sentence imposed.
Criminal sentencing proceeds in two parts. “A district court must ‘begin
all sentencing proceedings by correctly calculating the applicable Guidelines
range.’”
Beckles v. United States
,
Here, Espinoza-Bazaldua argues only that the district court procedurally
erred at the first step, and the record is clear that he properly objected to what
he perceived to be an erroneous calculation of his Guidelines range. He not
only objected to the PSR, but also reurged his objections at the sentencing
hearing. Both times, he pressed the same arguments he raises on appeal.
See
United States v. Brown
,
“[N]arrowly construe[d],” counsel’s statements did not invite the
purported error, s
ee Franklin
,
III
Espinoza-Bazaldua argues that the district court erred by applying the 16-level drug-trafficking-offense enhancement under § 2L1.2 for his Indiana dealing-in-marijuana conviction. The 2015 Guidelines increased an illegal reentry defendant’s base offense level by 16 if the defendant was deported “after . . . a conviction for a felony that is . . . a drug trafficking offense for which the sentence imposed exceeded 13 months [and] the conviction receives criminal history points under Chapter Four [of the Sentencing Guidelines.]” U.S.S.G. § 2L1.2(b)(1)(A)(i) (2015). The 2015 Guidelines specifically defined “drug trafficking offense” as any offense “that prohibits the manufacture, import, export, distribution, or dispensing of, or offer to sell a controlled substance . . . or the possession of a controlled substance . . . with intent to manufacture, import, export, distribute, or dispense.” U.S.S.G. § 2L1.2 cmt. n.1(B)(iv) (2015). Espinoza-Bazaldua does not dispute that his sentence exceeded 13 months or that his conviction warrants criminal history points under Chapter Four. The only issue is whether Indiana Code § 35-48- 4-10 (2005), which outlaws “dealing in marijuana,” is properly considered a “drug trafficking offense,” as defined by the Guidelines.
A
To determine whether a defendant’s prior conviction is “an offense
defined or enumerated in the Guidelines” that warrants an enhancement, we
usually apply the “categorical” approach.
United States v. Hinkle
,
But if the defendant’s prior statute of conviction is “divisible”—meaning
it “list[s] elements in the alternative, and thereby define[s] multiple crimes”—
we apply the “modified categorical approach.” at 2249;
see also Hinkle
,
If the statute of conviction doesn’t list alternative elements, but simply
“enumerates various factual
means
of committing a single element,” the
statute is indivisible, and we cannot use the modified categorical approach to
narrow the offense. at 2249, 2251-52 (emphasis added);
accord Hinkle
, 832
F.3d at 574. To determine whether a statute is “divisible” or “indivisible,” we
consider several sources, including the statutory text, state court decisions,
and if necessary, a “peek” at the record documents.
Mathis
,
In our court, however, once a district court determines that a defendant’s
statute of conviction meets the corresponding generic definition, the defendant
arguing on appeal that a state statute is nongeneric cannot “rest” on statutory
text, even if the text seems facially broader than the conduct covered by the
generic definition.
United States v. Castillo-Rivera
, 853 F.3d 218, 222
(5th Cir. 2017) (en banc). The defendant “must also show ‘a realistic
probability . . . that the State would apply its statute to conduct that falls
outside the generic definition of the crime.’” (quoting
Gonzales v. Duenas-
Alvarez
,
B
When Espinoza-Bazaldua was charged with his underlying marijuana offense in 2005, Indiana’s “dealing in marijuana” statute provided:
A person who:
(1) knowingly or intentionally:
(A) manufactures;
(B) finances the manufacture of;
(C) delivers; or
(D) finances the delivery of; marijuana, hash oil, or hashish, pure or adulterated; or (2) possesses, with intent to:
(A) manufacture;
(B) finance the manufacture of;
(C) deliver; or
(D) finance the delivery of; marijuana, hash oil, or hashish, pure or adulterated; commits dealing in marijuana, hash oil, or hashish[.] Ind. Code § 35-48-4-10 (2005).
With “alternatively phrased” statues such as Indiana’s,
Mathis
instructs
that our “first task” is to decide divisibility, “determin[ing] whether [the
statute’s] listed items are [divisible] elements [defining multiple potential
crimes] or [alternative factual] means [of committing a single element of an
indivisible crime].”
“But if instead they are means . . . [we] may ask only whether the elements of the state crime and generic offense make the requisite match.” Because we ultimately decide, however, that Espinoza-Bazaldua has not shown that Indiana’s dealing-in-marijuana statue, as a whole, is broader than the Guidelines’ generic definition of “drug trafficking offense,” we will not address the divisibility issue. [5]
As explained above, our court requires a defendant arguing that a state
statute is broader than the generic definition to point to a case in which the
state applied the statute “in the special (nongeneric) manner for which he
argues.”
Castillo-Rivera
,
None of the cases on which Espinoza-Bazaldua relies establishes the personal-use interpretation of the statute that he argues. In Kibler , the Indiana Court of Appeals considered a double-jeopardy challenge to the defendant’s convictions for “conspiracy to commit dealing in a narcotic drug” and “dealing in a narcotic drug,” a statute worded identically to Indiana’s dealing-in-marijuana offense. See § 35-48-4-1; 904 N.E.2d at *2. The State charged the defendant with “knowingly financ[ing] the delivery of . . . heroin” because he arranged with a dealer for an intermediary (his friend) to buy ten balloons of heroin. But even if this analysis were enough to establish that directly purchasing drugs for personal use violates Indiana’s dealing statute, subsequent decisions have effectively overruled that holding. See United exporting, or offering to sell (plus possessing with intent to import, export, or offer to sell). U.S.S.G. § 2L1.2 cmt. n.1(B)(iv). Second, the Seventh Circuit decided whether Indiana’s statute was broader than the comparable generic offense based only on the text of the statute, which is in tension with our decision in Castillo-Rivera . Again, Castillo-Rivera demands that a defendant show us a case in which the state applied its statute more broadly than the generic definition, and Lopez does not satisfy this requirement. Contrary to the Government’s suggestion, our court cannot refuse to consider
unpublished state cases in conducting the categorical inquiry. As we have explained, “an
unpublished state decision [still] demonstrates that a state has in fact applied a statute in a
manner broader than the generic definition of the Guidelines offense.”
United States v.
Martinez
,
Indeed, the same court of appeals held in
Hyche
that “mere[] . . .
purchase[s]” are not enough to sustain a dealing conviction in Indiana.
Hyche was charged with dealing in ecstasy, not investing funds to further the offense of possession of it. He was not charged with possession with intent to deliver, and the record is devoid of evidence of any other persons to whom he intended to deliver the drugs. . . . Instead, he acted merely as a purchaser and not as a creditor or an investor. . . . Because the record is devoid of any evidence that Hyche was acting in any capacity other than that of purchaser, it is insufficient to support a dealing conviction and therefore a felony murder conviction based thereon. at 1179-80.
Similarly, in Vausha , the defendant challenged her conviction for financing the delivery of methamphetamine. 873 N.E.2d at *1. The facts revealed that the defendant and her husband repeatedly solicited their neighbor, a confidential informant for the State, to buy meth. at *1-2. The court highlighted two particular facts that supported the defendant’s conviction for dealing by financing the delivery of meth. First, when the informant—purporting to buy meth on behalf of downstream dealers—asked to pay a lower price, the defendant “took control of the situation,” insisting on a certain price and telling the confidential informant that his buyers must be unaccustomed to such high-quality meth. Id. at *2, 5. Second, the defendant emphasized to the informant the “significant costs and risks” she took on to manufacture the meth. at *5. She specifically explained that she had to spend all day buying hundreds of over-the-counter pills to make enough meth to sell to the informant. at *2, 5. Like the court in Kibler , the court in Vausha never held that Indiana’s dealing statute encompasses purchases for personal use, as Espinoza-Bazaldua argues it does.
Because Espinoza-Bazaldua has not pointed us to a case establishing
that Indiana applies its dealing-in-marijuana statute “in the special
(nongeneric) manner for which he argues,” he has not shown a “realistic
probability” that the statute criminalizes a broader range of conduct than the
2015 Guidelines’ generic definition.
See Castillo-Rivera
,
Notes
[*] Pursuant to 5 TH C IR . R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR . R. 47.5.4.
[1] The parties completed briefing in this case in December 2016, before our court decided United States v. Castillo-Rivera , 853 F.3d 218 (5th Cir. 2017) (en banc). Because Castillo-Rivera bears on this appeal, as discussed below, we received supplemental briefing from the parties on the requirements of Castillo-Rivera and how they apply here.
[2] Since the Supreme Court decided in
Esquivel-Quintana v. Sessions
,
[3] Espinoza-Bazaldua argues that the Supreme Court “unequivocally overruled” our
court’s “heightened ‘realistic probability’ test” in
Esquivel-Quintana
. There, the Supreme
Court explained that, in applying the categorical approach, “we
presume
that the state
conviction ‘rested upon the least of the acts’ criminalized by the statute, and then we
determine whether that conduct would fall within the federal definition of the crime.”
Id.
at
1568 (emphasis added) (alterations and ellipsis omitted) (quoting
Johnson v. United States
,
[5] The Government failed to offer any argument about divisibility, stating in a single sentence of its brief: “the Texas burglary statute is not divisible.”
[6] In
Lopez v. Lynch
, 810 F.3d 484 (7th Cir. 2016), the Seventh Circuit addressed
Indiana’s “dealing-in-cocaine” statute, § 35-48-4-1, which is textually identical to the dealing-
in-marijuana statute at issue here. Comparing § 35-48-4-1 to the federal Controlled
Substances Act, which prohibits “manufactur[ing], distribut[ing], or dispens[ing], or
possess[ing] with intent to manufacture, distribute, or dispense, a controlled substance,” 21
U.S.C. § 841(a)(1), the Seventh Circuit held that Indiana’s dealing-in-cocaine statute was
facially broader, and thus nongeneric, because Indiana “also criminalizes
financing
the
manufacture or delivery of illegal drugs.”
[8] We do not decide—but nonetheless doubt—the Government’s alternative argument
that any conduct covered by a substantive state statute that
could
constitute aiding and
abetting deserves an enhancement even though the comparable generic substantive offense
does not cover the same conduct. The plain language of the Guidelines’ commentary instructs
courts to determine first whether the substantive offenses align. If they do, then aiding and
abetting, conspiring to commit, or attempting to commit the state’s substantive offense,
which matches the generic offense, warrants the sentencing enhancement.
See
U.S.S.G. §
2L1.2 cmt. n.5 (2015);
United States v. Henao-Melo
,