UNITED STATES of America, Plaintiff-Appellee, v. Juan Francisco MARTINEZ-LUGO, Defendant-Appellant.
No. 13-40924.
United States Court of Appeals, Fifth Circuit.
March 27, 2015.
782 F.3d 198
ii.
Because we find thаt APMM did not agree to arbitrate this dispute and that equitable estoppel does not compel it to arbitrate, we need not address whether the scope of the agreement includes the interpleader suit. See Tittle, 463 F.3d at 419 (determining scope of arbitration clause only because there was no dispute that parties were subject to a valid agreement to arbitrate). We also do not reach the district court‘s alternative grounds for denying appellants’ motion to compel.
CONCLUSION
For the foregoing reasons, we AFFIRM the district court‘s discharge of APMM and its accompanying injunction. We also AFFIRM the district court‘s denial of appellants’ motion to compel arbitration and to stay proceedings pending arbitration. King Construction is DISMISSED from these appeals. Appellants’ alternative motion to vacate the district court‘s rulings is DENIED.
Marjorie A. Meyers, Federal Public Defender, Philip G. Gallagher, Assistant Federal Public Defender, Michael Lance Herman, Assistant Federal Public Defender, Federal Public Defender‘s Office, Houston, TX, for Defendant-Appellant.
Before DAVIS, DENNIS, and COSTA, Circuit Judges.
PER CURIAM:
We sua sponte withdrew the prior panel opinion, United States v. Martinez-Lugo, 773 F.3d 678 (5th Cir.2014), and substitute the following:
Defendant-Appellant Juan Francisco Martinez-Lugo appeals from the district court‘s application of a 16-level sentence enhancement pursuant to
FACTS AND PROCEEDINGS
Martinez-Lugo was charged in an indictment with being unlawfully present in the United States following removal. He pleaded guilty to the indictment without the benefit of a written plea agreement. In the Presentence Report (“PSR“), the Probation Office determined that Martinez-Lugo‘s base offense level was eight. It applied a 16-level enhancement pursuant to
Applying a two-level reduction for acceptance of responsibility, the Probation Office determined that Martinez-Lugo‘s total offense level was 22. Based upon Martinez-Lugo‘s total offense level of 22 and criminal history category of IV, it сalculated that his guidelines sentence range was 63-78 months of imprisonment and that his guidelines sentence range would be 57-71 months of imprisonment if he were granted an additional one-level reduction for acceptance of responsibility. As an attachment to the PSR, the Probation Office included the accusation, guilty plea documentation, and final judgment from Martinez-Lugo‘s 2002 conviction, and those documents showed that Martinez-Lugo had been convicted under
When the case was first called for sentencing, Martinez-Lugo raised an objection to the 16-level enhancement on the ground that his prior Georgia conviction did not qualify as a “drug trafficking offense” under the Supreme Court‘s reasoning in Moncrieffe v. Holder, — U.S. —, 133 S.Ct. 1678, 185 L.Ed.2d 727 (2013), which considered the same Georgia statute. The district court granted Martinez-Lugo a continuance, and he subsequently filed a written objection to the PSR on that basis.
The distriсt court overruled Martinez-Lugo‘s objection. The Government moved for the additional one-level reduction for acceptance of responsibility, and the district court granted the motion. The district court additionally ruled that Martinez-Lugo‘s criminal history category was “artificially exaggerated” and that a criminal history category of III was more accurate. Based upon a total offense level of 21 and criminal history category of III, it determined that Martinez-Lugo‘s guide-
STANDARD OF REVIEW
Martinez-Lugo is not the first appellant to argue that, following Moncrieffe, a conviction “for giving away or offering to give away [i.e., for no remuneration] a controlled substance” does not constitute “a drug trafficking offense under
Because Martinez-Lugo preserved his objection to the sentence enhancement, “[w]e review the district court‘s interpretation and application of the sentencing guidelines de novo and its findings of fact for clear error.”3 “We review a district court‘s conclusion that a prior state conviction constitutes a drug trafficking offense de novo.”4
DISCUSSION
On appeal, Martinez-Lugo renews his argument that his prior conviction under
Section
(b) Specific Offense Characteristic
(1) Apply the Greatest:
If the defendant previously was deported, or unlawfully remained in the United States, after—
(A) a conviction for a felony that is (i) a drug trafficking offense for which the sentence imposed exceeded 13 months; ... increase by 16 levels if the conviction receives criminal history points under Chapter Four....7
“Drug trafficking offense” means an offense under federal, state, or local law that prohibits the manufacture, import, export, distribution, or dispensing of, or offer to sell a controlled substance (or a counterfeit substance) or the possession of a controlled substance (or a сounterfeit substance) with intent to manufacture, import, export, distribute, or dispense.8
The Georgia statute under which Martinez-Lugo was convicted provides:
(j) (1) It is unlawful for any person to possess, have under his control, manufacture, deliver, distribute, dispense, administer, purchase, sell, or possess with intent to distribute marijuana.9
The fact that Martinez-Lugo‘s Georgia conviction has the same label—“possession with intent to distribute“—as an enumerated offense listed in the Guidelines definition of “drug trafficking offense” does not automatically warrant application of the enhancement.10 Instead, we assume that an enumerated offense refers to the “generic, contemporary meaning” of that offense.11 The familiar categorical approach then requires us to ensure that the elements of that generic enumerated offense are congruent with the elements of the defendant‘s prior offense.12 In determining the generic, contemporary meaning of an enumerated offense, we consult sources such as state and federal statutes, the Model Penal Code, respected treatises, and dictionaries.13
The proper standard of comparison in this categorical inquiry is the elements of the enumerated offense of “possession with intent to distribute,” not the general meaning of the Guidelines term “drug trafficking.”14 That is because the Guidelines definition reflects a determination that certain enumerated offenses—such as possession with intent to distribute—qualify for
Martinez-Lugo never arguеs that the elements of Georgia‘s possession with intent to distribute offense differ from the elements of the generic, contemporary “possession with intent to distribute” offense.16 Instead, he argues that Moncrieffe v. Holder controls because of its general statement, in the context of discussing the “aggravated felony” provision of the Immigration and Nationality Act (INA), that “[s]haring a small amount of marijuana for no remuneration, let alone possession with intent to do so, does not fit easily into the everyday understand of trafficking.”17 Before responding more
fully to this argument, we note that on the required categorical comparison between the elements of Georgia‘s possession with intent to distribute and those of the generic offense, Moncrieffe seems to support the district court‘s application of the enhancement. In comparing the Georgia offense with the federal possession with intent to distribute statute,18 Moncrieffe recognized that the elements are the same.19 Thus, Georgia‘s statute “necеssarily proscribe[s] conduct that is an offense under the [Controlled Substances Act].” 20
If it recognized that Georgia‘s possession with intent to distribute statute has the same elements as its federal counterpart, why did Moncrieffe nonetheless find that a conviction under the Georgia statute did not require mandatory deportation? The answer lies in Moncrieffe‘s focus on the “aggravated felony” provision of the
We nonetheless recognize the difficulty of this issue and the attraction of Martinez-Lugo‘s argument in light of the Supreme Court‘s statemеnt that “[s]haring a small amount of marijuana for no remuneration, let alone possession with intent to do so, does not fit easily into the everyday understanding of ‘trafficking,’ which ordinarily means some sort of commercial dealing.”24 We conclude, however, that Moncrieffe does not control this case given that its holding rested on the specific requirement of the INA‘s aggravated felony provision requiring that the state offense would constitute a felony under the federal drug laws. In defining the Guidelines enhancement at issue here, the Sentencing Commission did not impose that requirement. Instead it required that the state offense match an enumerated offense such as “possession with the intent to distribute.” The Guidelines took a different approach than the INA does in trying to assess the seriousness of the state offense. Section 2L1.2 applies a 16-point enhancement for a prior felony that is a “drug trafficking offense” for which the sentence imposed exceeded 13 months, a 12-point enhancement for a prior felony that is a “drug trafficking offense” for which the sentence imposed was 13 months or less, an 8-point enhancement for an aggravated felony regardless of the sentence imposed, and a 4-point enhancement for any other felony.25 The focus is thus both on the length of the sentence and whether the conviction was a felony under state law.
As the dissent notes, the Guidelines commentary defines the 8-point “aggravated felony” enhancement to incorporate the INA‘s definition of aggravated felony at issue in Moncrieffe. The dissent then contends that it is anomalous to impose the greater 16-point enhancement for a Georgia conviction when it would not qualify for the lesser 8-point enhancement under Moncrieffe. This analysis misses a few points. First, inclusion of a separatе “aggravated felony” enhancement in Section 2L1.2 arguably supports our view that the INA-focused Moncrieffe analysis does not control the distinct “drug trafficking” en-
CONCLUSION
For these reasons, we decline to extend Moncrieffe to the different scheme embodied in the Guidelines absent clear direction to do so. Under the plain language of
We therefore AFFIRM the sentence.
JAMES L. DENNIS, Circuit Judge, dissenting:
In Moncrieffe v. Holder, — U.S. —, 133 S.Ct. 1678, 185 L.Ed.2d 727 (2013), the Supreme Court held that a conviction under a Georgia criminal statute that criminalizes the gratuitous sharing of a small amount of marijuana, or possession with the intent to do so, does not categorically constitute “illicit traffiсking in a controlled substance” and thus is not an “aggravated felony” for purposes of disqualifying a non-citizen for discretionary relief under the Immigration and Nationality Act (INA). The sole issue on appeal here is whether Martinez-Lugo‘s prior conviction under the same Georgia statute constitutes a “drug trafficking offense” justifying the imposition of a sixteen-level offense enhancement—the highest possible sentencing enhancement under United States Sentencing Guidelines
Although the INA and
I.
A.
Martinez-Lugo pleaded guilty to being unlawfully present in the United States following removal, in violation of
Section
In 2002, Martinez-Lugo pleaded guilty to a Georgia felony offense under
It is unlawful for any person to possess, have under his control, manufacture, deliver, distribute, dispense, administer, purchase, sell, or possess with intent to distribute marijuana.
The charging documents presented to the district court established that Martinez-Lugo pleaded guilty to possession with intent to distribute marijuana, and was sentenced to serve three years in confinement and two years on probation. The Georgia code defines “distribute” as follows: “to deliver a controlled substance, other than by administering or dispensing it.”
Examining the manner in which Georgia courts have prosecuted individuals under
the fact of a conviction for possession with intent to distribute marijuana, standing alone, does not reveal whether either remuneration or more than a small amount of marijuana was involved. It is possible neither was; we know that Georgia prosecutes this offense when a defendant possesses only a small amount of marijuana, see, e.g., Taylor v. State, 260 Ga.App. 890, 581 S.E.2d 386, 388 (2003) (6.6 grams), and that “distribution” does not require remuneration, see, e.g., Hadden v. State, 181 Ga.App. 628, 628-629, 353 S.E.2d 532, 533-534 (1987).
Id. at 1686. Accordingly, “Moncrieffe‘s conviction could correspond to either the CSA felony or the CSA misdemeanor. Ambiguity on this point means that the conviсtion did not ‘necessarily’ involve facts that correspond to an offense punishable as a felony,” and thus, “under the categorical approach, then, Moncrieffe was not convicted of an aggravated felony.” Id. at 1686-87. In conclusion, the Court then warned that courts should be wary of the Government‘s attempts to classify a low-level drug offense as “illicit trafficking in a controlled substance” and thus an “aggravated felony,” reasoning that to classify “[s]haring a small amount of marijuana for no remuneration, let alone possession with intent to do so,” as a trafficking offense “defies ‘the common-sense conception’ of th[at] term[]” because “the everyday understanding of ‘trafficking’ ... ordinarily means some sort of commercial dealing.” Id. at 1693 (some internal quotation marks and ellipses omitted). Thus, under the categorical approach and the teaсhings of Moncrieffe, it would be error to conclude that Martinez-Lugo‘s conviction under
B.
There is an ironic and illogical inconsistency in the ramifications produced by the
Under
The majority attempts to justify the anomaly of imposing such a harsh sentencing enhancement on individuals convicted under a statute that penalizes gratuitous sharing of small amounts of marijuana by noting that the ultimate legal question presented in this case—whether an enhancement under U.S.S.G. was properly imposed—is different from the question at issue in Moncrieffe—whether the immigration courts properly found that the petitioner was previously convicted of an “aggravated felony” under the INA, and that the Sentencing Commission is free to treat convictions of “drug trafficking offenses” more harshly than “aggravated felony” convictions, regardless of whether “that determination is the best policy decision or not.” Maj. Op., at 205. However, upholding a sixteen-level offense enhancement for a prior conviction under a statute that the Supreme Court has explained may be violated by mere social sharing of small amounts of marijuana for no remuneration flouts the very purpose of this U.S.S.G. provision. As this court has explained, “[t]he purpose of the sixteen-level enhancement is to ensure that a defendant who reenters the United States illegally after having committed a serious crime is punished more severely than a defendant who reenters the country illegally without having committed a serious crime.” United States v. Bustillos-Pena, 612 F.3d 863, 867 (5th Cir.2010) (emphasis added). The Court in Moncrieffe makes it clear that Martinez-Lugo‘s prior Georgia conviction
By requiring sentencing courts to treat non-commercial social users of marijuana like serious drug traffickers, the majority‘s decision creates an untenable inconsistency that is irreconcilable with Moncrieffe.
II.
The majority might have avoided its error had it properly and fully applied the categorical approach required by circuit precedents and elaborated upon in Moncrieffe.
The Application Notes corresponding to
Under the Taylor-Shepard31 categorical approach, “we look ‘not to the facts of the particular prior case, but instead to whether ‘the state statute defining the crime of conviction’ categorically fits within the ‘generic’ federal definition of a corresponding [drug trafficking offense].” Moncrieffe, 133 S.Ct. at 1684 (quoting Gonzales v. Duenas-Alvarez, 549 U.S. 183, 186, 127 S.Ct. 815, 166 L.Ed.2d 683 (2007)). To determine the “generic” federal definition of a crime we must view the federal offense “in the abstract, to see whether the state statute shares the nature of the federal offense that serves as a point of comparison.” Moncrieffe, 133 S.Ct. at 1684. We use a “plain-meaning approach when determining the ‘generic, contemporary meaning’ of non-common-law offense categories enumerated in federal sentencing enhancements.” United States v. Rodriguez, 711 F.3d 541, 552 (5th Cir.2013) (en banc).
“[A] state offense is a categorical match with a generic federal offense only if a conviction of the state offense ‘necessarily’ involved ... facts equating to [the] generic [federal offense].” Moncrieffe, 133 S.Ct. at 1684 (citing Shepard v. United States, 544 U.S. 13, 24, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005) (plurality opinion)). “Because we examine what the state conviction necessarily involved, not the facts underlying the case, we must presume that the conviction ‘rested upon [nothing] more than the least of th[e] acts’ criminalized, and then determine whether even those acts are encompassed by the generic federal offense.” Id. (quoting Johnson v. United States, 559 U.S. 133, 137, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010)); see also United States v. Carrasco-Tercero, 745 F.3d 192, 198 (5th Cir.2014) (quoting Moncrieffe, 133 S.Ct. at 1685); Sarmientos v. Holder, 742 F.3d 624, 628 (5th Cir.2014).32 As we have previously explained on review of a district court‘s sentencing enhancement pursuant to
Accordingly, I cannot agree with the majority‘s contention that Moncrieffe supports the district court‘s sentencing enhancement here merely because the Court in Moncrieffe, at first, found that the Georgia state law‘s elements, without benefit of the state courts’ interpretation of them, superficially appear to be consistent with the elements of a CSA offense. See Maj. Op., at 203. Certainly, the Court in Moncrieffe found that “[t]here is no question that it is a federal crime to ‘possess with intent to ... distribute ... a controlled substance,’
B.
Applying the Taylor-Shepard categorical approach to this case, we should conсlude that the Georgia statute under which Martinez-Lugo was convicted criminalizes conduct that does not categorically amount to “drug trafficking” and that his sentence, improperly enhanced under
Preliminarily, because the Georgia statute at issue is a divisible one, the district court properly consulted the charging documents and the final judgment to determine which subsection of the Georgia statute Martinez-Lugo was convicted under, and concluded he was convicted of possession with intent to distribute marijuana. From there, we apply the categorical approach and determine whether, “assum[ing] the defendant committed the least culpable act to satisfy the conviction,” the elements of the Georgia conviction fоr possession with intent to distribute marijuana are necessarily encompassed within the definition of a “drug trafficking offense” under
Next, we must determine whether “even th[e]se acts are encompassed by the generic federal offense.” Moncrieffe, 133 S.Ct. at 1684 (quoting Johnson, 559 U.S. at 137, 130 S.Ct. 1265). In defining the generic federal offense, we use a “plain-meaning approach.” See Rodriguez, 711 F.3d at 552. Moncrieffe instructs that the plain-meaning or “everyday understanding of ‘trafficking,’ ... means some sort of commercial dealing.” Moncrieffe, 133 S.Ct. at 1693. It follows that the plain meaning of the generic federal drug trafficking offense of possession with intent to distribute a controlled substance involves possession with the intent to distribute for remuneration or with the intent to engage in some form of commercial dealing. Martinez-Lugo‘s conviction under
Despite the majority‘s position to the contrary, the Court has repeatedly advised that we must consider the “everyday understanding” of the term “trafficking” when determining whether a state law is a categorical match with an enumerated “trafficking” offense, and that we should be wary of the Government‘s arguments that low-level drug offenses, such as sharing small amounts of marijuana for no remuneration, are “aggravated felonies” or “trafficking” offenses. See Moncrieffe, 133 S.Ct. at 1693 (reasoning that the Government‘s attempt to classify low-level drug offenses as “illicit trafficking” offenses and thus “aggravated felonies” is an approach that “defiеs the commonsense conception of these terms“) (quoting Carachuri-Rosendo v. Holder, 560 U.S. 563, 574, 130 S.Ct. 2577, 177 L.Ed.2d 68 (2010) (quoting Lopez v. Gonzales, 549 U.S. 47, 56, 127 S.Ct. 625, 166 L.Ed.2d 462 (2006))) (internal quotation marks omitted). Rather than ignore the term “trafficking” when we analyze whether the Georgia statute here is a drug trafficking offense, “[t]he everyday understanding of ‘trafficking’ should count for a lot here ... [a]nd ordinarily ‘trafficking’ means some sort of commercial dealing.” Lopez, 549 U.S. at 43, 127 S.Ct. 469; see also Carachuri-Rosendo, 560 U.S. at 573, 130 S.Ct. 2577. To decline to consider the meaning of the
*
In sum, applying the categorical approach, as we must, I would conclude that Martinez-Lugo‘s prior Georgia conviction, which may have involved nothing more than sharing a small amount of marijuana with no intention to seek remuneration, was not a drug trafficking offense, and therefore did not warrant the sixteen-level offеnse enhancement under
UNITED STATES of America, Plaintiff-Appellee, v. Jose Roberto PACHECO-ALVARADO, also known as Jose Roberto Alvarado, also known as Jose Robert Alvarado-Alvarado, Defendant-Appellant. United States Of America, Plaintiff-Appellee, v. Cesar de la Cruz, also known as Cholo de la Cruz, also known as Benjamin Espino-Montoya, also known as Rafael Villanueva, also known as Angel Espino, also known as Antonio Deltoro Lopez, Defendant-Appellant.
Nos. 13-31083, 14-30478.
United States Court of Appeals, Fifth Circuit.
March 30, 2015.