United States v. Gomez
Opinion of the Court
Defendant Luis Danery Gomez appeals the district court’s application of a 16-level enhancement under U.S.S.G. § 2L1.2(b)(l)(A)(i) (2015) to his sentence after finding that his two prior convictions under Colo. Rev. Stat. § 18-18-405(l)(a) (2012) were “drug trafficking offense[s]” under the Sentencing Guidelines. Gomez failed to preserve his objection below, so we review for plain error. Because we find that any error by the district court was not plain, we AFFIRM.
I.
Gomez, a native and citizen of Honduras, pleaded guilty without a plea agreement to illegal reentry in violation of 8 U.S.C. § 1326(a) and (b).
The Presentence Investigation Report (“PSR”) set Gomez’s base offense level at 8 for violation of 8 U.S.C. § 1326(a) and (b) under U.S.S.G. § 2L1.2(a). The PSR determined that his two prior convictions under COLO. REV. STAT. § 18-18-405(l)(a) (2012) qualified as “drug trafficking offense[s]” under U.S.S.G. § 2L1.2(b)(l)(A)(i) (2015), warranting a 16-level enhancement.
The district court adopted the factual findings in the PSR and determined that after a three-level reduction for acceptance of responsibility, Gomez’s total offense level was 21 with a criminal history category of IV, warranting a punishment range of 57 to 71 months of imprisonment. Gomez did not challenge the 16-level enhancement under § 2L1.2(b)(l)(A)(i), but did argue that a lesser sentence was appropriate because the enhancement and criminal history category exaggerated the severity of his prior convictions. The district court agreed and sentenced Gomez to 42 months of imprisonment, below the 57 to 71 month Guideline range.
Gomez appeals, arguing that the district court plainly erred by treating his prior conviction under Colo. Rev. Stat. § 18-18-405(l)(a) as a “drug trafficking offense” and applying a 16-level enhancement to his offense level under U.S.S.G. § 2L1.2(b)(l)(A)(i).
II.
Because Gomez did not raise this argument before the district court, our review is for plain error.
III.
Under the Sentencing Guidelines, § 2Ll,2(b)(l)(A)(i) allows for a 16-level enhancement if the defendant was previously deported following a conviction “for a felony that is (i) a drug trafficking offense for which the sentence imposed exceeded 13 months.”
Gomez argues that the district court erred in applying the 16-level enhancement based on his prior Colorado conviction under § 18-18-405(l)(a) becausé the statute is indivisible and categorically broader than the generic definition in the Guidelines.
To determine whether a prior state conviction is a drug trafficking offense under the Guidelines, we generally use the categorical approach.
Gomez’s crime of conviction is defined by Colo, Rev. Stat. § 18-18-405(l)(a) -in relevant part as follows:
[I]t is unlawful for any person knowingly to manufacture, dispense, sell, or distribute, or to possess with intent to manufacture, dispense, sell or distribute, a controlled substance; or induce, attempt to induce, or conspire with one or more*175 other persons, to manufacture, dispense, sell, distribute, or possess with intent to manufacture, dispense, sell, or distribute, a controlled substance; or possess one or more chemicals or supplies or equipment with intent to manufacture a controlled substance.11
Gomez contends that this statute is indivisible, containing alternative means to commit the offense, and therefore, the categorical approach applies.
The government concedes that § 18-18-405(l)(a) categorically reaches broader conduct than the definition of a drug trafficking offense. In United States v. Arizaga-Acosta, we held that the defendant’s prior conviction under 21 U.S.C. § 841(d)(1) for possession of a precursor chemical with intent to manufacture a controlled substance was broader than the definition of “drug trafficking offense” contained in the Guideline Commentary under § 2L1.2 cmt. n.l(B)(iv).
Therefore, the government argues that § 18-18-405(l)(a) contains multiple crimes that are ■ alternative elements, rendering the statute divisible. If so, the Court should apply the modified categorical approach to determine which portion of subsection (l)(a) Gomez was convicted under. If Gomez was convicted of either knowingly to (a) “manufacture, dispense, sell, or distribute, or to possess with intent to manufacture, dispense, sell, or distribute, a controlled substance”; or (b) “induce, attempt to induce, or conspire with one or more other persons to manufacture, dispense, sell, distribute, or possess with intent to manufacture, dispense, sell, or distribute, a controlled substance,” then either alternative element categorically falls within the definition of a “drug trafficking offense” in the Guidelines. The government argues that the three criminal acts contained in subsection (l)(a) of the Colorado statute are offset by semicolons and phrased in the disjunctive, demonstrating that they are alternative elements.
“A federal court should defer to state law” in determining “whether the state statute contains alternative means or elements.”
A few years later, the Colorado Supreme Court again confronted the structure of § 18-18-405(l)(a) in People v. Valenzuela and determined that the offense criminalized “three distinct categories of actions.”
Under Abiodun, Gomez is correct; § 18-18-405(l)(a) describes a single offense with different means of committing the drug trafficking. crime so that the statute is indivisible. However, the government argues that Valenzuela casts doubt on that interpretation and the three categories of conduct criminalized under subsection (l)(a) are alternative elements. If the “categories of actions” set forth in Valenzuela establishes alternative elements in subsection (l)(a) as supported by the dissent, the statute is divisible and the modified categorical approach applies. The government argues that because the overbroad subdivision of (l)(a), dealing with possession of chemicals, supplies, or equipment with intent to manufacture a controlled substance, falls outside of the Guidelines definition of a “drug trafficking offense,” we must look to Gomez’s charging documents to see whether he was charged and convicted under one of the subsections that do fall within the definition. If we can consult the charging documents, both of Gomez’s convictions would be considered “drug trafficking offense[s]” because they charge possession with intent to distribute and distribution of controlled substances.
Also, the Colorado Supreme Court has not addressed this statute since the Supreme Court’s decision in Mathis, so we do not have guidance on whether the categories of conduct proscribed in subsection (l)(a) constitutes alternative means or elements as provided in Mathis. It is clear
Assuming the district court erred by not finding § 18-18-405(l)(a) was indivisible under Abiodun, we find that any error was not so clear or obvious to make it plain. “An error cannot be plain where there is no controlling authority on point and where the most closely analogous precedent leads to conflicting results.”
IV.
Colorado jurisprudence allows for conflicting interpretations of Gomez’s prior crime of conviction, Colo. Rev. Stat. § 18-18-405(l)(a). We therefore hold that the district court did not plainly err in its application of a 16-level enhancement under U.S.S.G. § 2L1.2(b)(l)(A)(i)' for a drug trafficking offense.
AFFIRMED.
Pursuant to 5th Cíe. 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 5th Cir. R. 47.5.4.
. See United States v. Torres, 856 F.3d 1095, 1098 (5th Cir. 2017).
. Puckett v. United States, 556 U.S. 129, 135, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009) (quoting and citing United States v. Olano, 507 U.S. 725, 732-36, 113 S.Ct, 1770, 123 L.Ed.2d 508 (1993)) (internal quotation marks, brackets, and citations omitted).
. U.S.S.G. § 2L1.2(b)(l)(A)(i) (2015).
. U.S.S.G. § 2L1.2 cmt. n.l(B)(iv).
. See United States v. Wikkerink, 841 F.3d 327, 331 (5th Cir. 2016) (citing Taylor v. United States, 495 U.S. 575, 602, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990)).
. United States v. Rodriguez, 711 F.3d 541, 549 (5th Cir. 2013) (en banc).
. United States v. Tanksley, 848 F.3d 347, 350 (5th Cir.), supplemented, 854 F.3d 284 (5th Cir. 2017) (quoting United States v. Howell, 838 F.3d 489, 494 (5th Cir. 2016)) (internal quotation marks omitted).
. Mathis v. United States, — U.S. -, 136 S.Ct. 2243, 2249, 195 L.Ed.2d 604 (2016).
. Id. (citing Shepard v. United States, 544 U.S. 13, 26, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005); Taylor, 495 U.S. at 602, 110 S.Ct. 2143).
. Tanksley, 848 F.3d at 350.
. COlo. Rev. Stat. § 18-18-405(l)(a) (2012).
. See Mathis v. United States, — U.S. -, 136 S.Ct. 2243, 2248, 195 L.Ed.2d 604 (2016).
. United States v. Arizaga-Acosta, 436 F.3d 506, 508 (5th Cir. 2006); see also United States v. Reyes-Mendoza, 665 F.3d 165, 168 (5th Cir. 2011) (holding that a statute that criminalizes "production of a precursor with knowledge that it will be used to produce a controlled substance” was broader than the "manufacture” of a controlled substance within the definition of “drug trafficking offense”).
. See Colo. Rev, Stat. § 18-18-405(l)(a) (making it unlawful for a person to knowingly "possess one or more chemicals or supplies or equipment with intent to manufacture a controlled substance”).
. United States v. Uribe, 838 F.3d 667, 670 (5th Cir. 2016), cert. denied, — U.S. -, 137 S.Ct. 1359, 197 L.Ed.2d 542 (2017).
. People v. Abiodun, 111 P.3d 462, 466 (Colo. 2005).
. Id. at 467 (citing and quoting United States v. Mendoza, 902 F.2d 693, 697 (8th Cir. 1990); United States v. Gomez, 593 F.2d 210, 213 (3d Cir. 1979)).
. People v. Valenzuela, 216 P.3d 588, 592 (Colo. 2009) (emphasis added),
. Id. at 593.
. Id. at 592.
.Id. at 596 (Coats, J., dissenting).
. United States v. De La Fuente, 353 F.3d 766, 769 (9th Cir. 2003).
Dissenting Opinion
dissenting:
Because I would conclude that the district court plainly erred in its application of a 16-level enhancement under U.S.S.G. § 2L1.2(b)(l)(A)(i), I respectfully dissent.
Gomez was convicted under Colorado statute section 18-18-405(l)(a). The Colorado Supreme Court concluded in People v. Abiodun, 111 P.3d 462, 466 (Colo. 2006), that the conduct criminalized in section 18-18-405(l)(a) represents a single crime and not separate offenses. In the subsequent case of People v. Valenzuela, 216 P.3d 588, 592 (Colo. 2009), the Colorado Supreme Court repeatedly reiterated the holding of Abiodun and likewise found that “section 18-18-405(l)(a) creates one single offense.” Valenzuela, 216 P.3d at 592-93.
Thus, I agree with the majority’s acknowledgment that Valenzuela did not overrule Abiodun. However, then the majority concludes that Valenzuela “arguably undermined [Abiodun’s] holding that subsection (l)(a) constitutes a single, indivisible crime.” It did not. Consequently, I disagree with the majority’s conclusions that there is no clear controlling authority and that Colorado jurisprudence provides conflicting interpretations of Gomez’s prior crime of conviction.
Under the categorical approach, the statute is indivisible and categorically broader than the generic definition of a drug trafficking offense under the Guidelines. As Colorado’s jurisprudence is not conflicting, the error was clear and obvious. While the majority does not reach prongs three and four of the plain error analysis, I conclude that the error clearly affected Gomez’s substantial rights and “seriously affects the fairness, integrity, or public reputation of the judicial proceedings.” United States v. Mares, 402 F.3d 511, 520 (5th Cir. 2005). Further, we have granted relief in similar circumstances. See United States v. Martinez-Rodriguez, 821 F.3d 659, 667 (5th Cir. 2016).
For these reasons, I conclude that the district court did plainly err in its application of the enhancement. Because I would vacate and remand, I respectfully dissent.
Reference
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- United States v. Luis Danery GOMEZ
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