     Case: 11-41412       Document: 00512170326         Page: 1     Date Filed: 03/11/2013




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                          March 11, 2013

                                       No. 11-41412                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA

                                                  Plaintiff-Appellee
v.

ERIC ESTUARDO LOPEZ-CANO

                                                  Defendant-Appellant



                   Appeal from the United States District Court
                        for the Southern District of Texas
                            U.S.D.C. No. 5:11-cr-00706


Before DAVIS, GRAVES, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       Defendant Eric Estuardo Lopez-Cano appeals his sentence after a guilty
plea to illegal reentry by a previously deported alien, challenging the
enhancements for a prior drug trafficking offense and prior aggravated felony,
as well as the imposition of a term of supervised release when he is an alien
likely to be removed following his sentence. Based on our conclusion that the
government failed to establish by a preponderance of the relevant and
sufficiently reliable evidence that Lopez-Cano’s prior California conviction

       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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                                  No. 11-41412

qualifies for the drug trafficking enhancement, we vacate Lopez-Cano’s sentence
and remand for resentencing.
                                        I.
      Lopez-Cano pleaded guilty to illegal reentry by a previously deported
alien. In the pre-sentence report (PSR), the probation officer initially calculated
Lopez-Cano’s guidelines range as 0 to 6 months and the guidelines range for
supervised release as one year. In a supplemental addendum to the PSR, the
probation officer recalculated Lopez-Cano’s sentencing range as 30 to 37 months
due to the imposition of a 12-level drug trafficking enhancement under § 2L1.2.
The addendum also noted that Lopez-Cano was subject to the penalty provisions
set forth in § 1326(b)(2) and that the guidelines range for supervised release was
two to three years.     The enhancement was based on Lopez-Cano’s prior
California conviction for possessing for sale a controlled substance, i.e.,
methamphetamine.       Lopez-Cano objected to the supplemental addendum,
arguing only that the 12-level enhancement was not warranted because the
documents supporting the enhancement, a felony complaint and a docket sheet,
were insufficient under Shepard v. United States, 544 U.S. 13 (2005).
      Sentencing was held on December 27, 2011. With respect to the 12-level
enhancement, the Government submitted an additional document, a certified
case summary. Lopez-Cano argued that the documents were insufficient to
support the enhancement because they showed that an indictment or other
charging instrument had been issued in the California case, neither of which
was provided. The court determined that based on the documents before it, the
Government had met its burden of proof in connection with the enhancement.
The district court determined that Lopez-Cano’s sentencing range was 27 to 33
months after it awarded one additional point for acceptance of responsibility and
that his supervised release range was one to three years. The district court
asked Lopez-Cano if he objected to these new calculations, and he replied that

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he did not. The court stated, “In view of the information we have here, then,
and considering to some extent what I see here as some possible mitigating
issues, on the illegal reentry I’m going to do a mid-level – a mid-range type of
sentence.”    The district court sentenced Lopez-Cano to 30 months of
imprisonment and to three years of supervised release. Lopez-Cano reiterated
his objection to the 12-level enhancement but did not otherwise object to the
sentence. Lopez-Cano filed a timely notice of appeal.
                                        II.
      Lopez-Cano argues that the district court erred in characterizing his
California conviction as a drug trafficking offense for purposes of § 2L1.2(b)(1)(B)
and as an aggravated felony for purposes of § 1326(b)(2) because the state court
documents supporting the conviction were insufficient under Shepard.
      This court reviews de novo questions of the interpretation and application
of the Guidelines. United States v. Rodriguez, 630 F.3d 377, 380 (5th Cir. 2011).
The district court’s classification of a defendant’s prior conviction as a drug
trafficking offense is an issue that is reviewed de novo. See United States v.
Morales-Martinez, 496 F.3d 356, 357 (5th Cir. 2007). Before a district court may
impose a sentencing enhancement such as § 2L1.2(b)(1), the Government must
prove by a preponderance of the evidence any facts necessary to justify the
enhancement. See Rodriguez, 630 F.3d at 380. The district court’s factual
findings are reviewed for clear error. Id.       A factual finding is not clearly
erroneous if it is plausible in light of the record as a whole. Id. This court will
find clear error only if a review of the record results in a “definite and firm
conviction that a mistake has been committed.” Id. (internal quotation marks
and citation omitted).
                   Drug trafficking offense under § 2L1.2
      Under § 2L1.2, for purposes of the 12 level increase:



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      “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 counterfeit substance) with intent to manufacture,
      import, export, distribute, or dispense.
§ 2L1.2, comment. (n.1(B)(iv)). The California statute to which Lopez-Cano
pleaded nolo contendere states: “every person who possesses for sale any
controlled substance . . . shall be punished by imprisonment.” CAL. HEALTH &
SAFETY CODE § 11378. Two circuits have concluded that a conviction under §
11378 is not categorically a “drug trafficking offense” under § 2L1.2, because “[a]
California defendant may be convicted of possession for sale of a controlled
substance without committing a ‘controlled substance offense’ or ‘drug
trafficking offense’ under the federal guidelines.” United States v. Sanchez-
Garcia, 642 F.3d 658, 661-62 (8th Cir. 2011); United States v. Valdavinos-Torres,
704 F.3d 679, 684 (9th Cir. 2012). This is so because the California statute
criminalizes possession or purchase of substances not covered by the Controlled
Substances Act (CSA), and is thus broader than the Guidelines definition of drug
trafficking offense under U.S.S.G. § 2L1.2. Valdavinos-Torres,704 F.3d at 684.
The government does not argue that this circuit should reach a different
conclusion. Accordingly, for the conviction to qualify as a drug trafficking
offense, the government must establish that the substance the defendant was
convicted of possessing for sale in the underlying California offense is covered
by the CSA.
      Under Shepard, when a court is determining whether a prior conviction
is a drug trafficking offense under § 2L1.2, it may look beyond the statute of
conviction to “the terms of the charging document, the terms of a plea agreement
or transcript of colloquy between judge and defendant in which the factual basis
for the plea was confirmed by the defendant, or to some other comparable


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judicial record of this information.” Shepard, 544 U.S. at 26; United States v.
Garcia-Arrellano, 522 F.3d 477, 480 (5th Cir. 2008).
        Under California criminal procedure, a felony prosecution commences with
a criminal complaint. Cal. Pen. Code § 806. After arraignment, if the magistrate
judge determines that there is sufficient cause to believe that the defendant
might be guilty of the charges listed in the complaint, the magistrate orders that
the defendant be held to answer. Cal. Pen. Code § 872(a). At that point, the
parties may stipulate that the complaint be deemed an information, one form of
a charging instrument. 2-40 Cal. Criminal Defense Practice. § 40.03. If not, an
information must be filed within 15 days of the order. Id.; Cal. Pen. Code § 860.
The magistrate’s order following arraignment dated January 14, 2010, does not
contain such a stipulation. The information was filed January 28, 2010. There
is no requirement that the charges in the information be identical to those in the
complaint.
        Count two of the complaint related to the defendant’s prior offense
provides that Lopez-Cano was accused of possessing for sale a controlled
substance, methamphetamine, in violation of § 11378. If the complaint had been
deemed an information, Lopez-Cano’s nolo contendre plea to this charge would
satisfy the government’s burden, because methamphetamine is specified as the
controlled substance involved in the offense and methamphetamine is a
controlled substance under both § 11378 and § 2L1.2. The docket sheet indicates
that an information was filed on January 28, 2010, charging in count two a
violation of § 11378, and that Lopez-Cano pleaded nolo contendere to that count.
The case summary likewise provides that Lopez-Cano pleaded “NC” [nolo
contendre] a violation of § 11378 in count 2. However, neither the docket sheet
nor the case summary indicates what controlled substance was involved in count
two.     Because the January 2010 information and not the December 2009
criminal complaint is the charging instrument to which Lopez-Cano actually

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pled guilty and the government did not produce the information or other
Shepard-approved documentation to establish what controlled substance was
involved, Lopez-Cano argues that the government failed to establish a factual
basis for the drug trafficking enhancement. We agree.
      The docket sheet and the case summary are not Shepard-approved
documents because they were prepared by court not judges. United States v.
Gutierrez-Ramirez, 405 F.3d 352, 357-59 (5th Cir. 2005) (determining that a
California abstract of judgment, which was generated by court clerical staff,
could not be used in the categorical approach to prove a crime of violence);
Jimenez-Banegas, 209 F. App’x 384, 389 n.3 (“[D]istrict court docket sheets are
not the type of judicial record that a court should consider.”). Though we may
use these types of documents to establish the fact of the underlying conviction,
nothing on the docket sheet or case summary establishes what type of controlled
substance the charge involves. See United States v. Moreno-Florean, 542 F.3d
445, 449-50 and n.1 (5th Cir. 2008) (using the defendant’s indictment and a
California abstract of judgment to prove the existence of a prior conviction,
where the abstract of judgment was not being used to narrow the statute of
conviction based upon the facts underlying the offense); United States v.
Neri-Hernandes, 504 F.3d 587, 590-92 (5th Cir. 2007) (determining that New
York certificates of disposition could be used to identify the precise subsection
of the statute under which a defendant was convicted, as long as the certificate’s
recitation of the subsection number, rather than the facts underlying the offense,
was used and as long as the certificates had “sufficient indicia of reliability to
support their probable accuracy”).
      In addition, because an information was filed after the complaint, the
complaint is not a proper Shepard document because it is not the charging
instrument under which Mr. Lopez-Cano was convicted.            United States v.
Martinez-Paramo, 380 F.3d 799, 805 (5th Cir. 2004). In Martinez-Paramo, this

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court determined that a Pennsylvania complaint could not be used to determine
which subsection of a statute the defendant violated because an information or
indictment “may exist which charged [defendant] under another portion of the
statute or may not have specified under which subsection he was charged.” Id.
The Government had admitted that an information existed, but it was not in the
record. Id. Here, the docket sheet indicates that an information was issued, but
it does not appear in the record of this case.
      Based on the foregoing, the district court erred by relying on these
documents when ruling that Lopez-Cano’s prior conviction was a drug trafficking
offense for purposes of the 12-level enhancement. Cf. United States v. Garcia-
Arrellano, 522 F.3d 477, 480 (5th Cir. 2008) (“Garcia’s indictment and state court
judgment fall within the scope of documents a court may consider under
Shepard.”); United States v. Ford, 509 F.3d 714, 715 (5th Cir. 2007) (affirming
a “controlled substance offense” sentencing enhancement where the district court
relied on the state charging documents, indictment, and judgment). This error
was not harmless as it clearly affected the calculation of the sentencing
guidelines, and the government failed to demonstrate that the court would have
imposed the same sentence had the enhancement not been applied. United
States v. Ibarra-Luna, 628 F.3d 712, 718-19 (5th Cir. 2010). As such, reversal
for resentencing will be required. Id.
      Lopez-Cano argues that on remand the government should not be given
the opportunity to supplement the record to satisfy its burden of proof on this
issue, citing United States v. Chemical & Metal Industries, Inc., 677 F.3d 750
(5th Cir. 2012). In that case, the defendant might have been subject to an
alternative restitution order if pecuniary gain or loss had been proven. Id. at
753. The government did not meet its burden of proof and this court declined to
remand the case because the government had its chance to prove the amount of
loss in the original proceeding and failed to do so. Id. However, this court takes

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a different approach to sentencing decisions based on the facts of prior
convictions, routinely remanding for resentencing and allowing the government
to supplement the record with charging documents to establish the challenged
enhancement based on a prior conviction. United States v. Banda-Zamora, 178
F.3d. 728, 730 (5th Cir. 1999); United States v. Martinez-Paramo, 380 F.3d 799,
805 (5th Cir. 2004) (remanding and allowing supplementation despite court’s
understanding of defendant’s objection to allowing government a second chance
to provide requisite documentary support for enhancement); United States v.
Garcia, 470 F.3d 1143, 1148-49 (5th Cir. 2006) (on plain error review); United
States v. Salamanca-Rosas, 342 F.App’x 38, 40 (5th Cir. 2009); United States v.
Melendez-Marcia, 416 F.App’x 346, 349 (5th Cir. 2011). On remand, the district
court may allow the government to supplement the record with the information
or other Shepard-approved documents to establish whether the defendant’s prior
offense qualifies for the enhancement for a prior drug trafficking offense.
               Aggravated felony pursuant to § 1326(b)(2)
      Lopez-Cano argues that for the same reasons the state court documents
were insufficient under Shepard to prove that his California conviction was a
drug trafficking offense, the same documents were insufficient to establish that
the same conviction was an aggravated felony under § 1326(b)(2). Lopez-Cano
therefore argues that he should not have been convicted and sentenced under
that subsection and this case should be remanded for reformation of the
judgment to reflect that he was convicted and sentenced under § 1326(b)(1) not
§ 1326(b)(2) and for resentencing.
      The judgment in this case lists the offense of conviction as a violation of
§ 1326(a) and § 1326(b)(2). The indictment charged a violation of § 1326 without
designating a subsection of the statute. However, the supplemental addendum
to the PSR stated that, as a result of his prior California conviction, Lopez-Cano
was subject to the penalty provisions set forth in § 1326(b)(2); he did not object

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to that statement. The district court adopted the PSR. Thus, although Lopez-
Cano argues that this issue is subject to de novo review because he did not have
an opportunity to object to the reference to § 1326(b)(2) prior to entry of the
written judgment, he was aware that the Government sought conviction and
sentencing under that section and did not object; review is therefore for plain
error. United States v. Mondragon-Santiago, 564 F.3d 357, 368 (5th Cir. 2009).
      Section 1326(a) sets forth the substantive offense of illegal reentry and
provides for not more than two years of imprisonment. Section 1326(b) provides
the penalties for reentry of certain removed aliens and provides:
      Notwithstanding subsection (a) of this section, in the case of any
      alien described in such subsection--
            (1) whose removal was subsequent to a conviction for
            commission of three or more misdemeanors involving
            drugs, crimes against the person, or both, or a felony
            (other than an aggravated felony), such alien shall be
            fined under Title 18, imprisoned not more than 10
            years, or both;
            (2) whose removal was subsequent to a conviction for
            commission of an aggravated felony, such alien shall be
            fined under such title, imprisoned not more than 20
            years, or both.
§ 1326(b)(1)-(2).
      An aggravated felony is defined in 8 U.S.C. § 1101(a) as “illicit trafficking
in a controlled substance . . . including a drug trafficking crime (as defined in
section 924(c) of Title 18).” § 1101(a)(43)(B). Section 924(c) defines a drug
trafficking crime as, inter alia, “any felony punishable under the Controlled
Substances Act (21 U.S.C. 801 et seq.).” Since this court has determined that the
state court documents were insufficient to establish a drug trafficking crime for
purposes of the 12-level enhancement in § 2L1.2, it follows that Lopez-Cano was
not properly convicted and sentenced under § 1326(b)(2).



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      As we have previously determined that Lopez-Cano is entitled to
resentencing based on the erroneous application of the drug trafficking
enhancement, we need not consider the rest of the plain error analysis on this
issue. On remand, if the government fails to establish that Lopez-Cano’s prior
offense is an aggravated felony, the judgment will require modification to reflect
a sentence under § 1326(b)(1). See Mondragon-Santiago, 564 F.3d at 369
(reforming judgment to show § 1326(b)(1) conviction and sentencing where
evidence did not establish a conviction for a prior aggravated felony under §
1326(b)(2)).
                                       III.
      For the first time on appeal, Lopez-Cano argues that the three-year term
of supervised release was procedurally and substantively unreasonable in light
of his status as a deportable alien because the district court did not give a
sufficient explanation for imposing a term of supervised release despite the
admonition in U.S.S.G. § 5D1.1(c) that a term of supervised release should not
ordinarily be imposed in a case such as the present case. He contends that the
sentence was procedurally unreasonable because the district court’s imposition
of a term of supervised release was an upward departure from the guidelines
sentence range made without the required pre-sentencing notice. Lopez-Cano
maintains that the sentence was substantively unreasonable because the district
court did not give sufficient weight to the recommendation in § 5D1.1(c) that a
term of supervised release not ordinarily be imposed in a case such as this case.
      Effective November 1, 2011, the Sentencing Commission amended § 5D1.1
to add that a “court ordinarily should not impose a term of supervised release in
a case in which supervised release is not required by statute and the defendant
is a deportable alien who likely will be deported after imprisonment.” § 5D1.1(c).
The commentary explains that supervised release is unnecessary unless the
defendant legally returns to the United States and that if the defendant illegally

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returns, “the need to afford adequate deterrence and protect the public
ordinarily is adequately served by a new prosecution.” § 5D1.1, comment. (n.5).
Nevertheless, the court “should . . . consider imposing a term of supervised
release on such a defendant if the court determines it would provide an added
measure of deterrence and protection based on the facts and circumstances of a
particular case.” Id.
      The PSR applied the 2010 version of the Guidelines and did not note the
applicability of the amendment. Likewise, at the December 27, 2011 sentencing
hearing, the district court did not acknowledge the amendment. Counsel did not
object to the imposition of the term of supervised release. Thus, review is for
plain error. See United States v. Allison, 447 F.3d 402, 405 (5th Cir. 2006)
(holding that plain error applied because defendant first objected to term of
supervised release on appeal).
      In two recent opinions, this court addressed the effect of the recent
amendment to § 5D1.1 and the related commentary with respect to deportable
alien defendants. United States v. Dominguez-Alvarado, 695 F.3d 324 (5th Cir.
2012); United States v. Lara-Espinoza, 488 F. App’x 833 (5th Cir. 2012). As
pertinent here, in Lara-Espinoza, this court held that the district court’s
application of a pre-amendment version of § 5D1.1, where sentencing occurred
on December 1, 2011, was error that is clear or obvious. Lara-Espinoza, 488 F.
App’x at 834. Likewise, in the instant case, the district court’s application of the
2010 version of § 5D1.1 constitutes error that is clear or obvious. See 18 U.S.C.
§ 3553(a)(4)(A)(ii); see also United States v. Martin, 596 F.3d 284, 286 (5th Cir.
2010) (“[T]he district court is to sentence under the guidelines in effect at the
time of sentencing”).
      As this case is being remanded for sentencing, we note for the district
court’s guidance that in Lara-Espinoza we affirmed the sentence despite the
error, reasoning that “[e]ven though the district court adopted an outdated

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Guidelines provision in imposing a term of supervised release, [the] sentence
was imposed in accordance with the amended Guidelines.” Lara-Espinoza, 488
F. App’x at 835. The district court had conducted “the factual consideration of
whether the imposition of supervised release ‘would provide an added measure
of deterrence and protection based on the facts and circumstances of a particular
case.’” Id. at 834; see § 5D1.1, comment. (n.5).
                                       IV.
      For the foregoing reasons, we vacate Lopez-Cano’s sentence and remand
for resentencing. The district court may allow the government to supplement
the record to establish whether the defendant’s prior offense is a drug trafficking
offense under § 2L1.2 and an aggravated felony under § 1326. On remand, the
district court should apply the amended version of § 5D1.1 when considering
whether to order a period of supervised release.
VACATED; REMANDED.




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