PER CURIAM:
We sua sponte withdraw 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 U.S.S.G. § 2L1.2(b)(1)(A)(i) for his having been removed following a conviction for a drug trafficking offense for which the sentence was greater than 13 months based upon Martinez's 2002 Georgia conviction for possession with intent to distribute marijuana. For the reasons set out below, we AFFIRM the sentence.
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 U.S.S.G. § 2L1.2(b)(1)(A)(i) for having been removed following a conviction for a drug trafficking offense for which the sentence was greater than 13 months. The recommendation was based on Martinez-Lugo's 2002 Georgia conviction for possession with intent to distribute marijuana, for which Martinez-Lugo was sentenced to five years of imprisonment with two of those years probated.
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 calculated 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 GA.CODE ANN. § 16-13-30(j)(1) (2002).
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 district 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 guidelines
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 ... § 2L1.2(b)(1)(A)(i)."
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."
On appeal, Martinez-Lugo renews his argument that his prior conviction under GA.CODE ANN. § 16-13-30(j)(1) (2002) does not constitute a "drug trafficking offense" for purposes of applying the sentence enhancement of § 2L1.2(b)(1)(A)(i). Martinez-Lugo points to the Supreme Court's emphasis in Moncrieffe that "trafficking" generally requires remuneration,
Section 2L1.2(b)(1)(A)(i) provides:
The Georgia statute under which Martinez-Lugo was convicted provides:
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.
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."
Martinez-Lugo never argues 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.
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 statement 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."
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 separate "aggravated felony" enhancement in Section 2L1.2 arguably supports our view that the INA-focused Moncrieffe analysis does not control the distinct "drug trafficking" enhancement.
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 § 2L1.2(b)(1)(A)(i) and its Application Note, a "drug trafficking offense" includes the offense of "possession with intent to distribute." Under a straightforward application of the categorical approach, the Georgia offense under which Martinez-Lugo was convicted has the same elements as the generic possession with intent to distribute offense.
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 trafficking 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 (U.S.S.G.) § 2L1.2(b). Applying the principles and reasoning of Moncrieffe, I conclude that it does not.
Although the INA and U.S.S.G. § 2L1.2(b) are not directly coextensive, their application involves substantially similar principles and concepts that must be carefully applied to avoid sentencing out-comes that are inconsistent with the plain text and purpose of U.S.S.G. § 2L1.2. Further,
Martinez-Lugo pleaded guilty to being unlawfully present in the United States following removal, in violation of 8 U.S.C. § 1326(a). The district court determined that his base offense level was eight pursuant to U.S.S.G. § 2L1.2(a) and, after overruling Martinez-Lugo's objection, found that he was subject to a sixteen-level offense enhancement under § 2L1.2(b)(1)(A)(i) based on his prior Georgia conviction for a crime designated as "possession with intent to distribute marijuana." With the sixteen-level enhancement, the district court calculated Martinez-Lugo's Guideline advisory range as 46-57 months of imprisonment and sentenced him to 46 months in prison.
Section 2L1.2(b)(1)(A)(i) instructs, in relevant part, that district courts increase a defendant's offense level by sixteen if "the defendant previously was deported, or unlawfully remained in the United States, after ... a conviction for a felony that is... a drug trafficking offense for which the sentence imposed exceeded 13 months." USSG § 2L1.2(b)(1)(A)(i). The "Application Note" to § 2L1.2 defines a "drug trafficking offense" as, inter alia, "an offense under federal, state, or local law that prohibits the ... possession of a controlled substance ... with intent to manufacture, import, export, distribute, or dispense." U.S.S.G. § 2L1.2(b)(1)(A)(i), Application Note § 1(B)(iv).
In 2002, Martinez-Lugo pleaded guilty to a Georgia felony offense under Ga.Code Ann. § 16-13-30(j)(1), which provides that:
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." Ga.Code Ann. § 16-13-21(11). As the Supreme Court held in Moncrieffe, Georgia case law reveals that this is a broad definition and that distribution does not necessarily require a sale. See Dorsey v. State, 212 Ga.App. 479, 480, 441 S.E.2d 891, 892 (1994) ("[A] distribution may or may not be a sale."); see also Capers v. State, 273 Ga.App. 427, 428, 615 S.E.2d 126, 128 (2005) ("[T]he offense of distribution of [a controlled substance] does not require that the offender receive a payment.").
Examining the manner in which Georgia courts have prosecuted individuals under Ga.Code Ann. § 16-13-30(j)(1), the Moncrieffe Court concluded that because a defendant under this Georgia statute may be prosecuted for giving away a small amount of marijuana for no remuneration, it is not categorically an aggravated felony. The Court explained that
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 conviction 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 commonsense 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 teachings of Moncrieffe, it would be error to conclude that Martinez-Lugo's conviction under Ga.Code Ann. § 16-13-30(j)(1), which criminalizes conduct such as the social sharing or giving away of small amounts of marijuana for no remuneration, is necessarily and categorically a drug trafficking offense.
There is an ironic and illogical inconsistency in the ramifications produced by the
Under U.S.S.G. § 2L1.2(b)(1)(C), a defendant previously deported after conviction of an "aggravated felony" receives an eight-level offense enhancement. The Sentencing Commission defines an aggravated felony for purposes of § 2L1.2(b)(1)(C) as the "meaning given that term in 8 U.S.C. § 1101(a)(43)" — the INA provision that the Supreme Court analyzed in Moncrieffe. See U.S.S.G. § 2L1.2, Application Note (3)(A) (emphasis added); Moncrieffe, 133 S.Ct. at 1683 (analyzing 8 U.S.C. § 1101(a)(43) to determine whether Moncrieffe was previously convicted of an "aggravated felony" under the INA). Thus, Martinez-Lugo's prior conviction under the identical Georgia statute cannot trigger an eight-level offense enhancement under U.S.S.G. § 2L1.2(b)(1)(C) for a prior aggravated felony conviction — Moncrieffe held that this Georgia statute is not an "aggravated felony" as defined in 8 U.S.C. § 1101(a)(43). It defies logic, then, to conclude that although Martinez-Lugo's prior Georgia conviction could not amount categorically to an aggravated felony-and thus cannot trigger an eight-level enhancement under U.S.S.G. § 2L1.2 — that his prior conviction, possibly for sharing a small amount of marijuana gratuitously, nonetheless categorically constitutes a "drug trafficking offense" worthy of a sixteen-level offense enhancement under U.S.S.G. § 2L1.2.
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.
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 U.S.S.G. § 2L1.2 provide a list of enumerated offenses that qualify as "drug trafficking" offenses for purposes of § 2L1.2(b)(1)(A), including the possession with intent to distribute a controlled substance. The majority correctly acknowledges that the mere "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." Maj. Op., at 202. Our precedents plainly instruct that rather than allowing state-law labels to control, "[w]e employ a categorical approach to determine whether a prior conviction qualifies as a drug trafficking offense under § 2L1.2." United States v. Henao-Melo, 591 F.3d 798, 802 (5th Cir. 2009); see also United States v. Teran-Salas, 767 F.3d 453, 458 (5th Cir.2014); United States v. Reyes-Mendoza, 665 F.3d 165, 168 (5th Cir.2011); United States v. Garza-Lopez, 410 F.3d 268, 273 (5th Cir. 2005).
Under the Taylor-Shepard
"[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).
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,' 21 U.S.C. § 841(a)(1), one of which is marijuana, § 812(c)." Moncrieffe, 133 S.Ct. at 1685. However, that finding did not end the Moncrieffe Court's inquiry, nor may it end ours. Id. ("So far, the state and federal provisions correspond. But this is not enough[.]"). The Moncrieffe Court concluded only that the Georgia law corresponds to a crime penalized by the CSA and says nothing to suggest that this finding alone signifies that the Georgia crime is categorically a "drug trafficking" offense. As we have explained, "[n]ot all felony drug offenses are drug trafficking offenses." Henao-Melo, 591 F.3d at 805. It is undisputed that the CSA also penalizes simple possession of a controlled substance, see 21 U.S.C. § 844(a), which is excluded from the Guideline's definition of a "drug trafficking offense." See U.S.S.G. § 2L1.2; see also Henao-Melo, 591 F.3d at 805 (citing United States v. Caicedo-Cuero, 312 F.3d 697, 707 (5th Cir.2002) ("[The definition of `drug trafficking offense' in § 2L1.2] clearly excludes simple possession of a controlled substance.")). Indeed, ending the inquiry prematurely, after only a superficial comparison of the offenses' elements alone, ignores both this court's and the Supreme Court's instructions that we must analyze Georgia state law to determine how the state courts interpret their own statute and whether the state-law offense criminalizes conduct broader than the generic federal offense. See Moncrieffe, 133 S.Ct. at 1684; see also Reyes-Mendoza, 665 F.3d at 169 (analyzing California courts' interpretation of the term "manufacture" to determine whether the defendant's prior California conviction for manufacturing a controlled substance in violation of Section 11379.6 of the California Health and Safety Code is categorically a drug trafficking offense under U.S.S.G. § 2L1.2).
Applying the Taylor-Shepard categorical approach to this case, we should conclude 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 U.S.S.G. § 2L1.2(b) by sixteen offense levels for conviction of a prior drug trafficking offense, should therefore be vacated.
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 for possession with intent to distribute marijuana are necessarily encompassed within the definition of a "drug trafficking offense" under § 2L1.2. See Carrasco-Tercero, 745 F.3d at 198 (quoting Moncrieffe, 133 S.Ct. at 1685).
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 Ga.Code Ann. § 16-13-30(j)(1), which criminalizes conduct that does not necessarily amount to the distribution of marijuana for remuneration, is therefore broader than the generic, contemporary meaning of a drug trafficking offense of possession with intent to distribute and therefore cannot support the sixteen-level sentence enhancement under § 2L1.2(b)(1)(A)(i).
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 "defies 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 offense enhancement under U.S.S.G. § 2L1.2(b), which ultimately led to his sentence of 46 months of imprisonment. In finding to the contrary, the majority fails to fully and properly apply the categorical approach, misreads and disregards the principles and holdings of Moncrieffe, and condones an application of U.S.S.G. § 2L1.2 that is inconsistent with the clear purpose of that provision. I therefore respectfully dissent.