United States v. Oscar Garza-Lopez

KING, Chief Judge: Defendant-Appellant Oscar Garza-Lo pez pled guilty to being knowingly and unlawfully present in the United States deportation, following violation of 8 (b). § U.S.C. and At sentencing, the district court increased his offense lev by el points pursuant to sixteen. Sentencing (“U.S.S.G.”) States Guidelines 2L1.2(b)(1)(A)(i) (2003),which authorizes an enhancement if the previous defendant ly was convicted of offense” for which the sentence exceeded thirteen months. Garza-Lopez ap now peals his seventy-seven months, (1) arguing: “felony” “ag gravated felony” provisions of 8 U.S.C. 1326(b) unconstitutional; are the dis trict court erred enhancing his sentence 2L1.2(b)(1)(A)(i); the dis trict court erred by sentencing him under mandatory guidelines regime held to be unconstitutional in United States v. — Booker, U.S.-, (2005). L.Ed.2d 621 following rea sons, we VACATE and REMAND Garza- Lopez’s sentence.

I. FACTUAL AND PROCEDURAL

BACKGROUND 19, 2003, On February Garza-Lopez was Jeffery Alan (argued), deported Babcock James from the United States Mexi- Turner, Lee Atty., Houston, TX, Asst. U.S. co. July On prior to deporta- for U.S. tion, he was convicted in Superior (including the the revised PSR adopted California, County, Bakers- Kern Court for Garza-Lo- a controlled sixteen-level field, transporting/selling conviction under “drug trafficking” un- methamphetamine, pez’s substance, namely Safety 11379(a)), it concluded Garza- der Cal. & Code Health years history category three was VI. criminal Lopez’s was sentenced range under Accordingly, punishment this offense. imprisonment sevеnty- Sentencing Guidelines agents Patrol Border July On The district ninety-six months. seven County Hidalgo at the found seventy- Garza-Lopez to court sentenced had Texas. Edinburg, Jail months, applica- end of the the low seven to re- permission obtained previously by two-year a to be followed range, ble being deport- after the United States enter The court also release. supervised term of 2003, he was indicted February of in ed assessment. imposed special а $100 in the United illegally present being with charge. this guilty to pled He States. Garza-Lopez December On timely appeal of of his sen court a notice the district filed On December brief, he original appellate the Presen tence. In his Garza-Lopez. sentenced (the “PSR”), the “felo applied whether only raised one issue: Report which tence Manual, felony” of ny” “aggravated provisions of the Guidelines 2003 edition 1326(b) Garza-Lopez § are officer scored unconstitutional. probation 8 U.S.C. moving He then for responded by level of eight. government offense at a base The by sixteen offense level On June summary affirmance. increased U.S.S.G. motion for to ruled on the pursuant this court points before 2L1.2(b)(l)(A)(i), affirmance, a six moved Garza-Lopez which authorizes summary § The if defendant brief. supplemental to a teen-point enhancement for leave file traf motion. As prior Garza-Lopеz’s of granted been convicted court has result, supplemental which the sentence filed a Garza-Lopez for ficking offense” months. The the district argued thirteen that in which imposed exceeded brief enhance sixteen- imposed for this the basis when PSR stated that court erred under conviction Garza-Lopez’s 2001 enhancement ment was level Safety 2L1.2(b)(1)(A)(i) of his on the basis § under Cal. Code Health & 11379(a). 11379(a). Garza-Lopez § under § conviction supple tо motion unopposed an also filed granted sentencing, the district At record, permission requesting ment the Garza-Lopez’s of- a two-level reduction charg the state include the record respon- of timely acceptance for fense level under conviction for his ing instrument up- an requested sibility. government The Fi 11379(a), this court granted. § which under-representation for departure ward Garza-Lopez, February nally, on an history ‍​​​‌‌​‌‌‌‌‌‌​‌​​​​‌‌‌‌‌​​​‌​​​​‌​​​​‌‌‌‌​​​‌‌‌​‌‍and criminal Garza-Lоpez’s of court, filed of this permission with the timely reduction one-level additional addressing the letter brief supplemental Garza-Lopez responsibility. acceptance appeal. on his of Booker effect departure upward to the objected The departure. downward moved for a ANALYSIS an II. request for granted the departure downward one-level additional Enhancement A. The Sixteen-Level it de- responsibility, accеptance that Garza-Lopez argues up- an request for government’s

nied the enhancing by court committed then district court departure. ward by his sentence sixteen levels on the basis too broad to a predicate establish § of his 2001 conviction under justifying [sixteen]-level enhance 11379(a) According Garza-Lopez, ment.” Id. Garza-Lopez argues that this conduct, variety criminalizes a including court should the logic follow of the Ninth that cannot acts fоrm the basis for a sen Circuit’s decision in Navidad-Marcos and tencing under hold that the district court erred en 2L1.2(b)(1)(A)(i). hancing by his offense level sixteen levels because is too broad to have states permitted an 2L1.2(b)(1)(A)(i) enhancement under U.S.S.G. Sentencing 2L1.2(b)(1)(A). Guidelines, argues He further a defendant’s offense level is the district court’s error if affected his previ increased sixteen levels he has sub because, rights stantial ously been a “drug trafficking convicted of absent the sixtеen- enhancement, offense for level which the imposed he would have been exceeded 13 Sentencing facing imprisonment months.” The an range thir Guidelines define a ty-three of forty-one months. fense” as: did not ob federal, state, [A]n or lo- ject below to the district imposition court’s manufacture, cal that prohibits law the increase, the sixteen-level this court re import, export, distribution, dispens- or views the district imposition court’s of the (or ing of a controlled substance a coun- enhancement for plain error. See United substance) terfeit possession or the of a (5th 355, States v. Villegas, 404 F.3d 356 (or controlled substance a counterfeit Cir.2005). This plain court finds error substance) manufacture, with intent (1) when: error; there was an the import, distribute, export, dispense. obvious; error was clear and the 2L1.2, Application U.S.S.G. Note error affected the defendant’s substantial 1(B)(iv). notes, As Garza-Lopez in the Id; rights. Olаno, United States v. 507 present the PSR stated that Garza- 725, 732-37, 1770, U.S. 123 Lopez had been convicted of such a “drug (1993). L.Ed.2d 508 When these three trafficking offense,” namely the offense of met, conditions are all may this court exer “[t]ransport/sell methamphetamine” under cise'its discretion to correct the error 11379(a). argues that the if the error “seriously fairness, affects the district court erred because it relied on the integrity, or public reputation judicial PSR and because the language of proceedings.” States, Mares, United v. 402 11379(a) was too broad to establish that 511, Cir.2005) (quoting Unit he had committed a trafficking off Cotton, ed States v. 535 U.S. In support claim,

ense.”1 of this Garza- 1781, 152 (2002)). S.Ct. L.Ed.2d 860 Lopez cites United v. States Navidad- Marcos, (9th Cir.2004), 367 F.3d 903 In reviewing Garza-Lopez’s claim which held, the Ninth error, Circuit a case of begin we by determining “ facts, with similar was whether the district court committed an 1. Garza-Lopez argues also language that the supplement filed motion the of the charging California simply document copy record with a of the California charging Thus, language tracks the §of government document. The oppose did not contends that even if the district court had motion, this granted. which this court Ac- document, charging examined the it could not cordingly, charging document is now part have concluded that he committed -a of the record. 17, offense.” On June plain. it had prepared by and whether error was before was the PSR In resolv Villegas, probation PSR, 357-362. In officer. Garza-Lopez’s claim that ing probation officer categorized Garza-Lo- misapplying pez’s erred “Transport/sell 2001 conviction as 2L1.2(b)(1)(A), we review the district methamphetamine; Superior Court of interpretation application Bakersfield, court’s County, California; Kern de novo. Id. Guidelines probation Cause No. BF095698A.” The provided officer then the following narra- categorical approach Under underlying tive of the facts this offense: Taylor set forth in According County, to the Kern Califor- 575, 602, 110 109 L.Ed.2d U.S. S.Ct. nia, Department, July Sheriffs on a district court looks to the 2001, deputies received confidential in- offense, elements of a rather than to formation indicating that the defendant conviction, underlying the facts when process transporting ap- en classifying prior offense proximately two ounces of methamphet- purposеs. hancement See also United amine from a motel room staying he was Gracia-Cantu, States v. at to a local market. Surveillance was (5th Cir.2002). range In a “narrow .... deputies established followed cases,” however, may a district court look market, the defendant to a local where beyond the elements of the offense when parked the defendant the vehicle. After making Taylor, such a determination. deputies made contact with thе de- cases, U.S. at 110 S.Ct. 2143. such fendant, a search of the vehicle was facts, courts are ‍​​​‌‌​‌‌‌‌‌‌​‌​​​​‌‌‌‌‌​​​‌​​​​‌​​​​‌‌‌‌​​​‌‌‌​‌‍not free to consider conducted, which led to the seizure of may statutory but consider the definition 1.97 ounces of methamphetamine offense, charging paper, of the the and the wrapped in a on washcloth the floor- jury instructions. See United States v. Consequently, board. the defendant (5th Cir.2002) Allen, 282 F.3d placed was under arrest. The defendant (citing Taylor, 495 U.S. at 110 S.Ct. going latеr admitted that he was to sell 2143). court that This has held the deter female, methamphetamine the to a “drug trafficking mination of whether a identify. whom he refused to A further offense” was committed falls into the nar search of the defendant’s motel room led range row may cases where the court approximately to the seizure of 62.3 than consider information other the statu grams methamphetamine. The de- tory definition of the offense. United in charged fеndant also was Count Rodriguez-Duberney, States v. 326 F.3d possession with of a controlled substance (5th Cir.2003) (“We 613, 616-17 therefore sale, which was dismissed in the decline to extend the Gracia-Cantu cate justice. furtherance of 2L1.2(b)(1)(A)(i).”). gorical approach to a six- probation officer recommended Thus, making courts such a determination pursuant teen-level enhancement may statutory consider the definition of 2L1.2(b)(l)(A)(i) in- on the basis of this offense, predicate сharging paper, the formation, from but he did not state where 617; jury and the instructions. id. at See he obtained this factual information about Allen, 282 F.3d at 343. Garza-Lopez’s conviction. present district charging probation docu- officer’s factual did have the state While jury suggests ment or the instructions before it narrative the PSR Garza- Garza-Lopez. Lopez “drug trafficking All that was convicted of a when sentenced offense,” (5th Cir.2005) the district court not permit Fed.Appx. was (per cu riam) rely ted to on the PSR’s characterization (unpublished), this court found that the offense order to make its determi the district court had plain committed er was a “drug nation whether-it traffick ror when it imposed a sixteen-level en ing Shepard offense.” In v. United hancement for committing “drug traf — U.S. —, 1259- ficking offense.” In Gonzalez-Borjas, 161 L.Ed.2d 205 the Supreme adopted the PSR’s character rejected Court an expansive reading of ization of the defendant’s sentence as a Taylor permit that would courts to exam “drug trafficking offense.” This court re ine other documents than conclusive rec sentence, versed the holding defendant’s adjudicating guilt ords made or used that the district court had committed characterizing when a sentence for en error when finding that the defendant had purposes. Accordingly, hancement it held committed a “drug trafficking offense.” Shepard that the district court in was lim Gonzalez-Borjas, Fed.Appx. at 557- examining definition, statutory ited “the 58; see also States v. Martinez- document, charging plea agree written Cortez, (5th 1451-17 Cir. ment, transcript plea colloquy, 1993) (holding that the district court’s reli factual explicit finding by the trial judge to ance on the PSR to characterize the defen which the defendant assented.” Id. at prior dant’s pur Thus, under Shepard, a district poses error); Navidad-Marcos, court is not permitted rely on a PSR’s F.3d at (holding 907-09 characterizatiоn of a defendant’s of court erred when it relied on the PSR and fense for enhancement purposes. Similar the abstract of judgment when imposing ly, Gutierrez-Ramirez, in United States v. sixteen-level enhancement for committing Cir.2005), the PSR offense”). trafficking recommended a sixteen-level increase for As for statutory definition of a prior “drug commission of 11379(a), on which the district court court, offense.” The district after examin could properly rely, it encompasses activi ing abstract of judgment, granted the ty that does not fall within the definition of appeal, increase. On government, ar “drug trafficking § offense” under 2L1.2. guing that the sentence should be af Navidad-Marcos, See firmed, 367 F.3d at stated that 907. Rodriguez-Dub under instance, 11379(a) criminalizes the erney, “may the court look to sources transportation of a controlled such as substance ‍​​​‌‌​‌‌‌‌‌‌​‌​​​​‌‌‌‌‌​​​‌​​​​‌​​​​‌‌‌‌​​​‌‌‌​‌‍the PSR for underlying the facts for personal use and offers to prior transport, the conviction.” Id. at 353. This sell, furnish, administer, rejected give away court government’s the a argument, controlled holding that Rodriguez-Duberney substance. Cal. Health “did not Safe & ty authorize reference to None of Code a source other than these acts fall within the indictment the “drug to determine definition of whether the traffick ing 2L1.2, conviction could offense” under be classified which as covers ” ‘drug manufacture, trafficking the import, offense.’ Id. at export, 617. dis Accordingly, tribution, this court or dispensing held that the dis of a controlled sub (or erred, trict court possession and it stance vacated and re with the intent to do manded the defendant’s sentence. Id. at these things). See U.S.S.G. Likewise, 2L1.2, 1(B)(iv). 616-618. in a recent unpub Application Note Ac lished case nearly present identical to the cordingly, the district court could not have one, United States v. Gonzalez-Borjas, 125 found that was convicted of a necessarily increased defen solely by looking [the trafficking offense” “drug sentence and thus affected sub dant’s] it because language at the Id.; rights.” see also United stantial the district overbroad. was 456, 468 n. Insaulgarat, 378 F.3d States docu- charging it the not have before did Cir.2004) (holding that because for instructions Garza-Lo- jury ment or impo error resulted district court’s conviction, nothing prop- it had pez’s substantially greater of a sentence sition rely proved on that er to permitted maximum otherwise than thе trafficking “drug of- of a was convicted Guidelines, Sentencing the error under the the district Accordingly, fense.” rights defendant’s substantial affected the Garza-Lopez was found that when it erred judicial proceed of the and the fairness offense.” trafficking of a convicted Gracia-Cantu, at 312 ings); to the second respect With (same). present without-the test, an error is plain-error of the prong committing for sixteen-level Olano, or “obvious.” offense,” if it is “clear” plain Garza-Lo 1770. As at 113 S.Ct. adjusted 507 U.S. level would pez’s base thirteen, v. United held Johnson Supreme Court at most and his sen have been 461, 467-68, 117 S.Ct. at most tencing range 520 U.S. would have been months, enough “it far less thirty-three forty-one is 137 L.Ed.2d seventy-seven time of month sentence ‘plain’ at the than the error be Thus, court’s error As discussed received. consideration.” appellate imposi in the case present resulted above, have made recent cases several substantially that was tion of court’s reliance on that the district clear otherwise have been greater than would See, e.g., Shepard, was error. the PSR Sentencing Guide permitted 1259-61; at Gutierrez-Ra lines, sub thereby affecting Garza-Lopez’s 352, 354-55; mirez, F.3d Gonzalez- judi and the fairness of the rights stantial the dis Accordingly, 557-58. Borjas, at See, e.g., Villegas, proceedings. cial plain. trict court’s error 357-62; at Insaulgarat, 378 F.3d the third and respect With Gracia-Cantu, at 17; n. test, we plain-error of the prongs fourth conclude that the district Accordingly, we the defendant determine “whether must it im error when committed that, probability but show a reasonable can sentence enhance the sixteen-level posed misapplication court’s sen ment, Garza-Lopez’s vacate we Guidelines, would have defendant] [the resentencing.2 See tence and remand Villegas, 404 a lesser sentence.” received 355, 357-62. Villegas, 404 F.3d 355, the court Villegas, 357-62. Constitutionality 8 U.S.C. B. The enhancement, stated that absent 1326(b) have “sentencing range would defendant’s twenty-one argues from between that 8 Garza-Lopez reduced next been (2) 1326(b)(1) ten are unconsti twenty-seven §§ months to between and and U.S.C. in applied as at It then their face and months.” Id. 364. tutional on and sixteen Jersey, 530 U.S. v. New sentencing light Apprendi these two held that “[b]ecause 2348, 435 466, L.Ed.2d 147 court’s S.Ct. overlap, the district ranges do not guide- sentence, mandatory sentencing by him undеr Garza-Lopez’s we vacate 2. Because argument that the regime. not address his we need lines under Booker committed error district court (2000).3 According Garza-Lopez, precedent. rez-Torres and Fifth Circuit - “felony” “aggravated felony” provi and admits, Garza-Lopez readily As in Almen sions in these sections found are essential darez-Torres, Supreme Court effec pled elements of the offense that must be tively rejected argument. See Almеn in proved beyond the indictment and a darez-Torres, 235, at U.S. doubt, sentencing reasonable not enhance Furthermore, Apprendi 1219. did that judge ment factors should deter Instead, overrule Almendarez-Torres. mine. that in He notes Almendarez-Tor Supreme Court stated in Apprendi res v. U.S. 118 that “we need not revisit [Almendarez- S.Ct. 140 L.Ed.2d 350 purposes of our today Torres] decision Supreme rejected argument, Court this to tréat the case as a exception narrow holding thаt “Congress intended to set general rule we recalled at the outset.” forth a sentencing factor in subsection Apprendi, 530 U.S. at 120 S.Ct. 2348. (b)(2) sepa and not a [of 1326] U.S.C. This repeatedly rejected court has argu Nevertheless, rate criminal offense.” ments by like the one made argues in light Apprendi, that there is that, and has held Almendarez-Torres re reason to think that Almendarez-Torres See, binding despite Apprendi. mains e.g., wrongly decided. While Mendez-Villa, United States v. 346 F.3d thinks therе reason to is believe Almenda (5th Cir.2003) curiam); 570-71 (per decided, was wrongly rez-Torres he admits Delgado-Nunez, United States v. in argument his brief that his that 8 U.S.C. (5th Cir.2002). Accordingly, 1326(b)(1) (2) §§ and are unconstitutional Garza-Lopez’s argument is in by foreclosed this circuit Almenda 1326(b)(1) (2) §§ and are unconstitutional rez-Torres. He then states that he is light simply Apprendi fails. raising argument appeal this on preserve possible it for review the Su

preme Court. III. CONCLUSION Because Garza-Lopez objection made no to the alleged below, constitutional error reasons, For the foregoing we VACATE we review it for plain error. United ‍​​​‌‌​‌‌‌‌‌‌​‌​​​​‌‌‌‌‌​​​‌​​​​‌​​​​‌‌‌‌​​​‌‌‌​‌‍Garza-Lopez’s and REMAND Knowles, States v. for resentencing consistent opin- with this Cir.1994). This court has held that is “[i]t ion. self-evident that basing conviction on an

unconstitutional statute is ‘plain’ both GARZA, EMILIO M. Judge, Circuit ‘error’ ....” Id. at 951. concurring in judgment only: Garza-Lopez’s argument 1326(b)(1) §§ my are unconstitutional the reasons partial stated Apprendi after light fails in of Almenda- Creech, concurrence United States v. 1326(b)(1) §§ both, 8 U.S.C. against state: person, felony or or a (other aggravated (b) felony), than an such penalties reentry Criminal of certain alien shall be impris- fined under Title removed aliens both; (a) years, oned not more than 10 Notwithstanding subsection of this sec- tion, subsequent whose removal was in the of to a case alien described in aggravated such conviction for subsection— commission of an to, felony, subsequent whose removal was such alien shall be fined under such Title, imprisoned conviction for commission of years, three or more not more than 20 involving drugs, misdemeanors crimes or both .... 04-40354, No. WL mand this to the case district court for 3, 2005), resentencing. May at *9 Cir. I statement, majority’s with cit- disagree

ing Villegas, determining that in whether court committed we application

review its interpretation the Guidelines de novo. Booker instructs McNAMARA, Lane On behalf of him that, in determining sentencing whether a similarly sеlf and situated; all others error, committed appeals courts of Singer, Reuven Randall On behalf sentencing are to “review for un- similarly decisions themselves and others situ ated; Quick, Booker, John On behalf at reasonableness.” S.Ct. similarly themselves others added). situ (emphasis review is our ated; McCarthy, John C. On behalf unreasonableness, it is enough similarly themselves and others that, say standard, under a de novo situated; McCarthy; Marian Patricia sentencing incorreсtly interpreted Hunt, On behalf of themselves and applied the Guidelines. similarly situated; others Scott Wild ing, I join majority’s nevertheless judg On behalf of themselves and oth similarly situated; ers Melvin B. vacating Garza-Lopez’s ment sentence and Miller, On behalf of themselves and remanding resentencing, because similarly situated; others Meissner record indicates that the district court did Incorporated, Music Productions not have before it an adequate basis to Inc.; Meissner Musiс Productions 2L1.2(b)(1)(A)(i) impose a sentencing en Partnership, New Madras Limited Generally, hancement. sentencing On behalf of themselves and others permitted is “to look to the fact of similarly situated; Hirsch, Alan On [prior] statutory conviction and the defini behalf of themselves and others simi Taylor, tion of the offense.” larly situated; Benjamin Kemper, On at U.S. 110 S.Ct. 2143. statutory behalf of themselves others simi at encompasses definition issue this case larly situated; Foss, L. Deborah On activity that does not fall within the defini behalf of themselves and others simi tion of trafficking offense” under larly situated; Lytle, Donald be On 2L1.2(b)(1)(A)(i). Navidad-Marcos, See half of themselves and others simi at 907. To conclude that Garza- larly situated, Plaintiffs-Petitioners, Lopez previously had been of a convicted offense,” therefore, FELDERHOF, B. John Jeannette sentencing court needed to have before Walsh, On behalf of themselves and document, ‍​​​‌‌​‌‌‌‌‌‌​‌​​​​‌‌‌‌‌​​​‌​​​​‌​​​​‌‌‌‌​​​‌‌‌​‌‍the “charging plea written similаrly situated; Stephen others T. agreement, transcript plea colloquy, [or] McAnulty; Thorpe; John B. Rolando any explicit factual finding by the trial Francisco; Hugh Lyons; C. C. Paul judge to which the defendant assented.” Kavanaugh; Eng. Pacific; M. Kilborn Shepard, 125 at 1257. S.Ct. Without bene Rekayasa, P. T. Pakar An In Kilborn fit Shepard-approved of one of the docu Company; donesian Barrick Gold ments, this court cannot wheth determine Corporation; Inc.; Nesbitt Burnes imposed er the sentence was unreasonable Inc., Morgan J.P. & Co. Defendants- Accordingly; Respondents. under Booker. must re- we

Case Details

Case Name: United States v. Oscar Garza-Lopez

Court Name: Court of Appeals for the Fifth Circuit

Date Published: May 19, 2005

Citation: 410 F.3d 268

Docket Number: 03-41750

Court Abbreviation: 5th Cir.