KING, Circuit Judge:
Having been deported to Mexico in 2005 following his conviction of an aggravated felony, Trino Medina-Campo returned to the United States and remained undetected for several years, until he was arrested in Anne Arundel County, Maryland, on April 1, 2011, for driving under the influence. The federal authorities were alerted, and a grand jury in the District of Maryland charged Medina-Campo with a single count of illegal entry after deportation, in contravention of 8 U.S.C. § 1326(a); see also § 1326(b)(2) (increasing maximum two-year term of imprisonment for ordinary violators to twenty years for aliens "whose removal was subsequent to a conviction for commission of an aggravated felony"). Medina-Campo pleaded guilty, and, on April 16, 2012, he was sentenced by the district court to fifty months in prison. On appeal, Medina-Campo challenges the court's calculation of his prison term insofar as it was informed by the federal Sentencing Guidelines. Discerning no error, we affirm.
The applicable guideline is section 2L1.2, titled "Unlawfully Entering or Remaining in the United States," which designates a base offense level of 8. The guideline provides for a sixteen-level enhancement,
Taking into account the Oregon drug conviction, the district court, over an objection from the defense, enhanced the offense level for the illegal-entry conviction to 24 from the base of 8. The court then subtracted three levels in adjustment, having found, in agreement with the government, that Medina-Campo had accepted responsibility as to the federal offense. See USSG § 3E1.1(b). The final adjusted offense level of 21, viewed in conjunction with his inclusion within criminal history category IV, resulted in an advisory Guidelines range for Medina-Campo of 57 to 71 months of imprisonment. From the lower end of the calculated range, the court varied downward to impose the fifty-month sentence appealed from. See 18 U.S.C. § 3553(a).
Medina-Campo pursues on appeal the same contention he advanced below, that is, the Oregon felony of unlawful delivery of a controlled substance does not qualify under the Guidelines as a "drug trafficking offense" meriting the sixteen-level enhancement. Discounting the trafficking enhancement, the applicable offense level is 10, reflecting a less severe four-level enhancement for the Oregon felony, see USSG § 2L1.2(b)(1)(D), downwardly adjusted by two levels (instead of three) for acceptance of responsibility, see id. § 3E1.1(a). Using the calculation that Medina-Campo proposes, his advisory Guidelines range would be 15 to 21 months, and it is possible that, after his present sentence is vacated and the matter remanded, he would receive a commensurately more lenient term of imprisonment.
We will not disturb a district court's reasonable sentencing decisions, consistent with the proper exercise of its discretion. See United States v. Lawing, 703 F.3d 229, 241 (4th Cir.2012) (citing Gall v. United States, 552 U.S. 38, 41, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007)). A sentence is unreasonable in the procedural sense if the court flatly omits certain steps, or if it analyzes relevant considerations in a manner contrary to fact or law. A court may therefore commit reversible sentencing error by, for instance, "failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence." Gall, 552 U.S. at 51, 128 S.Ct. 586. With respect to a Guidelines range attacked on appeal as miscalculated, we review the court's legal conclusions de novo and its factual findings for clear error. See United States v. Llamas, 599 F.3d 381, 387 (4th Cir.2010).
We begin with the proposition that "[c]ourts employ a categorical approach in determining whether a prior conviction will lead to a sentence enhancement under the Sentencing Guidelines." United States v. Peterson, 629 F.3d 432, 435 (4th Cir.2011) (citing, inter alia, Taylor v. United States, 495 U.S. 575, 588, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990)). Medina-Campo posits that the Oregon felony of unlawful delivery of a controlled substance is not categorically a "drug trafficking offense" within the meaning of section 2L1.2. This seemingly counterintuitive theorem finds germination in the Oregon case law recognizing that one can be convicted of delivery not only for the most mundane physical transfer of possession, but also by merely soliciting drugs from a supplier (albeit unsuccessfully) for subsequent transfer.
The latter situation was illustrated in State v. Sargent, in which an Oregon appellate court held that
822 P.2d 726, 728 (Or.Ct.App.1991). As related by the Sargent court, the solicitation "constitutes delivery" insofar as "an attempt to transfer a controlled substance is treated the same as a completed transfer." Id.
Seizing upon the remoteness in time of the threshold act of soliciting delivery from the climactic act of actual delivery via physical transfer, Medina-Campo maintains that the Oregon delivery statute, having been interpreted inclusively by the courts of the state, "`prohibits different types of behavior such that it can be construed to enumerate separate crimes.'" United States v. Gomez, 690 F.3d 194, 198 (4th Cir.2012) (quoting United States v. Rivers, 595 F.3d 558, 562-63 (4th Cir. 2010)). And if soliciting delivery is, under Gomez and Rivers, a separate crime from attempted or actual delivery, Peterson's categorical approach must give way to the modified categorical approach, which applies only to that relatively small subset of cases "involving statutes encapsulating separate proscriptions, at least one of which constitutes," for our purposes, a drug trafficking offense. Gomez, 690 F.3d at 198; see United States v. Maroquin-Bran, 587 F.3d 214, 218 (4th Cir.2009).
Medina-Campo asserts that he prevails under the modified categorical approach, which circumscribes our review "`only to the fact of conviction and the statutory definition of the prior offense,'" Gomez, 690 F.3d at 198 (quoting Shepard v. United
Medina-Campo's carefully crafted argument goes nowhere, of course, if its premise is shown unsound, i.e., if soliciting delivery of a controlled substance is not, for purposes of section 2L1.2, a separate crime from attempting or effectuating delivery, such that the modified categorical approach may be employed. See United States v. Vann, 660 F.3d 771, 782 (4th Cir.2011) (en banc) (King, J., concurring) (instructing that "[t]he categorical approach, when it applies[,] ... is mandatory and dispositive," and, thus, "where `the statute only contains one category of crime... a court may not vary from the categorical approach'" (third alteration in original) (quoting Rivers, 595 F.3d at 564)).
In analyzing whether the Oregon delivery statute is divisible for federal sentencing purposes, we first construe the pertinent portions of the Guidelines, using standard canons of statutory interpretation. See Peterson, 629 F.3d at 434 ("Because resolution of the issue involves interpretation of the Sentencing Guidelines, we begin with the text."). If a suitable answer cannot be divined from the language of the Guidelines, we will look to the general criminal law of the several states to ascertain how the nation's courts have commonly regarded the interplay between solicitation and other drug offenses more readily understood to be within the trafficking rubric. See id. at 436 (observing that, in employing the categorical approach, courts "must distill a `generic' definition of the predicate offense based on how the offense is defined `in the criminal codes of most states'" (quoting Taylor, 495 U.S. at 598, 110 S.Ct. 2143)).
Medina-Campo points out that, for purposes of the sixteen-level enhancement authorized by section 2L1.2(b)(1), Application Note 1 to the guideline defines a drug trafficking offense as one "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." USSG § 2L1.2 cmt. n.1(B)(iv).
Though "solicitation" does appear elsewhere in the Guidelines with some frequency, and occasionally alongside "conspiracy" and "attempt," the term is not mentioned in Application Note 5.
MPC and Commentaries, pt. I, § 5.02, cmt. (2) (1985).
Notwithstanding that Application Note 5 to Guidelines section 2L1.2 overtly includes within the trafficking enhancement only the additional offenses of aiding and abetting, conspiracy, and attempt, it is not the case that every other offense related to trafficking is necessarily excluded. See USSG § 1B1.1 cmt. n. 2 (explaining that, with respect to its appearance throughout the Guidelines, "[t]he term `includes' is not exhaustive"). Medina-Campo acknowledges this general rule of construction, but he urges that we apply a variation of the canon of ejusdem generis to demonstrate that, in drafting Application Note 5, the Commission purposefully intended to exclude solicitation.
Ejusdem generis, as a tool of statutory construction, instructs that "where general words follow an enumeration of persons or things, by words of a particular and specific meaning, such general words are ... to be held as applying only to persons or things of the same general kind or class as
Application Note 5 recites, in its entirety, that "[p]rior convictions of offenses counted under subsection (b)(1) include the offenses of aiding and abetting, conspiring, and attempting, to commit such offenses." USSG § 2L1.2 cmt. n. 5. There is no trailing general language analogous to that in our example ("any other illuminating material") describing the group of three enumerated offenses, but, Medina-Campo insists, if solicitation were added as a fourth, it would be manifest that one of these things (solicitation) is not like the others.
The problem with Medina-Campo's argument is that none of these things is very much like the others, and that, we daresay, is precisely why there is no general language in the application note categorizing them. Two persons may conspire to traffic in drugs, but it is sufficient that either of them commit the overt act necessary to render his confederate criminally culpable for the unlawful agreement. That overt act, perhaps, falls short of the substantial step constituting a full-blown attempt to traffic. Or, when supplemented with other acts, a completed trafficking offense may result, possibly inculpating the perpetrator's bodyguard for aiding and abetting.
All of these myriad theories of criminal liability, though conceptually quite distinct, are nonetheless integral to the trafficking process, as is solicitation — an act that often assists in identifying the market for the illegally trafficked substances, and which may well prove the catalyst for a subsequent conspiracy, attempt, or aiding and abetting. These drug offenses are therefore not "separate crimes" for federal sentencing purposes, but are instead simply different ways to commit the broad, unitary offense of drug trafficking described in the Guidelines. Given the absence of separate crimes delineated within section 475.992(1)(a) of the Oregon Revised Statutes, the modified categorical approach is inapposite.
Using the categorical approach, then, we are constrained to conclude that the Oregon felony of unlawful delivery of a controlled substance, even if the defendant engaged only in solicitation, is a drug trafficking offense for the purpose of applying the sixteen-level enhancement described in section 2L1.2(b)(1)(A). Because the result in this case is dictated by the language of the Guidelines, we do not delve into defining the generic offense of delivery by resort to the MPC, an analysis of the predominate mode among the various states, or otherwise. Such extrinsic methodology is unnecessary here to properly interpret the relevant sentencing provision.
Three of our sister circuits, confronting closely analogous circumstances, have arrived at the identical result. In United States v. Shumate, 329 F.3d 1026 (9th Cir.2003), a federal marijuana prosecution, the defendant had been convicted of delivery of marijuana under the same Oregon statute being scrutinized here. The Ninth Circuit was asked to consider the possibility that the conviction was the result of solicitation, and, in that event, whether it would qualify as a "controlled substance offense." See USSG § 4B1.1(a) (explaining the prerequisites for career offender
Paralleling the construct of section 4B1.1(a), the "crime of violence" proviso also appears alongside that of "drug trafficking offense" in section 2L1.2(b)(1)(A), and both are subject to Application Note 5. In United States v. Cornelio-Pena, 435 F.3d 1279 (10th Cir.2006), an unlawful entry proceeding under 8 U.S.C. § 1326(a), the defendant's prior Arizona conviction for solicitation to commit burglary was deemed a "crime of violence" for purposes of the sixteen-level enhancement. Upon reviewing the mens rea and actus reus components of conspiracy, attempt, and aiding and abetting, see id. at 1286-88, the Tenth Circuit concluded that those offenses "are merely illustrative, and solicitation is sufficiently similar to the listed offenses to be encompassed" within Application Note 5, id. at 1288.
Persuaded by Shumate and Cornelio-Pena, the Fifth Circuit, in another unlawful entry prosecution, concluded that the defendant's earlier solicitation conviction in North Carolina — to-wit, solicitation to commit assault with a deadly weapon inflicting serious injury — is a crime of violence for purposes of the section 2L1.2(b)(1)(A) enhancement. See United States v. Mendez-Casarez, 624 F.3d 233 (5th Cir.2010). The court of appeals adopted an approach similar to that of the Tenth Circuit in Cornelio-Pena, particularly comparing solicitation to conspiracy, after which it determined that "the acts of soliciting and agreeing are similar, and we do not find the distinctions drawn between the actus reus requirements of solicitation and conspiracy to be dispositive in making one offense more clearly serious than the other." Mendez-Casarez, 624 F.3d at 240. The court declined to engage in further analysis concerning the attempt and aiding and abetting offenses, declaring that "solicitation need only be similar to one of the listed offenses in [Application Note 5]." Id.
Standing alone to the contrary is the decision in United States v. Dolt, 27 F.3d 235 (6th Cir.1994), in which the defendant, convicted of federal cocaine trafficking charges, was sentenced as a career offender under USSG § 4B1.1. The sentence was predicated in part on a prior Florida conviction for solicitation to traffic in cocaine, construed by the district court as a controlled substance offense. The Sixth Circuit analyzed the characteristics of the offenses identified in the application note, concluding that the offense of solicitation was not sufficiently analogous to be included within. The court thus vacated the defendant's sentence and remanded for resentencing.
Whether parallels can be drawn between elements or characteristics of the generic offense of solicitation and one or more of the offenses particularly identified in Application Note 5 of section 2L1.2 (or the indistinguishable provision in the application notes to section 4B1.2, relating to career offender status) is beside the point. The salient feature common to solicitation of a crime, conspiring or attempting to commit the crime, and aiding and abetting the crime's commission, is the underlying crime itself. Prefatory and participatory acts apart from the substantive crime, though doubtlessly subject to prosecution as independent offenses, may yet be so closely related as to be considered the same offense within the federal sentencing realm. That is the reality engendered by Application Note 5 and its analogous provisions, and there is no reason to believe that solicitation merits exclusion therefrom. See Cornelio-Pena, 435 F.3d at 1287-88 ("Solicitation seeks to induce the commission of a crime, and thus is the original, direct cause of the crime if it is subsequently committed.").
Reviewing the question de novo, we conclude that the district court committed no legal error by its interpretation of USSG § 2L1.2. Instead, the court properly calculated the advisory Guidelines range by enhancing Medina-Campo's offense level, pursuant to section 2L1.2(b)(1)(A), in that he had been convicted of a drug trafficking felony in Oregon. The sentence imposed was therefore patently reasonable, and we affirm it.
AFFIRMED
