     Case: 16-41152      Document: 00514142373         Page: 1    Date Filed: 09/05/2017




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

                                      No. 16-41152                            FILED
                                                                       September 5, 2017
                                                                         Lyle W. Cayce
UNITED STATES OF AMERICA,                                                     Clerk

              Plaintiff - Appellee

v.

LUIS DANERY GOMEZ,

              Defendant - Appellant




                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 7:16-CR-231-1


Before DAVIS, GRAVES, and COSTA, Circuit Judges.
PER CURIAM:*
       Defendant Luis Danery Gomez appeals the district court’s application of
a 16-level enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(i) (2015) to his
sentence after finding that his two prior convictions under COLO. REV. STAT. §
18-18-405(1)(a) (2012) were “drug trafficking offense[s]” under the Sentencing
Guidelines. Gomez failed to preserve his objection below, so we review for plain




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 16-41152         Document: 00514142373         Page: 2     Date Filed: 09/05/2017



                                        No. 16-41152
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(1)(a) (2012) qualified as “drug trafficking offense[s]” under U.S.S.G.
§ 2L1.2(b)(1)(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)(1)(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(1)(a) as a “drug
trafficking offense” and applying a 16-level enhancement to his offense level
under U.S.S.G. § 2L1.2(b)(1)(A)(i).
                                              II.
      Because Gomez did not raise this argument before the district court, our
review is for plain error. 1 Plain error review has four prongs: (1) “there must


      1   See United States v. Torres, 856 F.3d 1095, 1098 (5th Cir. 2017).
                                               2
     Case: 16-41152       Document: 00514142373         Page: 3    Date Filed: 09/05/2017



                                      No. 16-41152
be an error or defect—some sort of deviation from a legal rule—that has not
been intentionally relinquished or abandoned”; (2) “the legal error must be
clear or obvious”; (3) “the error must have affected the appellant’s substantial
rights”; and if those three elements are met, (4) the Court has the discretion to
correct the error “only if the error seriously affects the fairness, integrity or
public reputation of judicial proceedings.” 2
                                            III.
       Under the Sentencing Guidelines, § 2L1.2(b)(1)(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.” 3 The Commentary following the Guideline defines “drug
trafficking offense” as an offense 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.” 4
       Gomez argues that the district court erred in applying the 16-level
enhancement based on his prior Colorado conviction under § 18-18-405(1)(a)
because 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. 5




       2 Puckett v. United States, 556 U.S. 129, 135 (2009) (quoting and citing United States
v. Olano, 507 U.S. 725, 732-36 (1993)) (internal quotation marks, brackets, and citations
omitted).
       3 U.S.S.G. § 2L1.2(b)(1)(A)(i) (2015).
       4 U.S.S.G. § 2L1.2 cmt. n.1(B)(iv).
       5 See United States v. Wikkerink, 841 F.3d 327, 331 (5th Cir. 2016) (citing Taylor v.

United States, 495 U.S. 575, 602 (1990)).
                                             3
     Case: 16-41152       Document: 00514142373          Page: 4     Date Filed: 09/05/2017



                                       No. 16-41152
“Under the categorical approach, the analysis is grounded in the elements of
the statute of conviction rather than a defendant’s specific conduct.” 6 To
determine if a prior conviction is an offense defined by the Guidelines, we “look
to the elements of the offense enumerated or defined by the Guideline section
and compare those elements to the elements of the prior offense for which the
defendant was convicted.” 7 Under Mathis v. United States, if the statute
defines “multiple crimes” such that it contains alternative elements it is
divisible, and we use the modified categorical approach. 8 In that case, we look
to “a limited class of documents (for example, the indictment, jury instructions,
or plea agreement and colloquy) to determine what crime, with what elements
a defendant was convicted of.” 9 After identifying the precise crime, we “then
apply the categorical approach, asking whether that precise crime matches the
Guidelines offense at issue.” 10
       Gomez’s crime of conviction is defined by COLO. REV. STAT. § 18-18-
405(1)(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 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




       6 United States v. Rodriguez, 711 F.3d 541, 549 (5th Cir. 2013) (en banc).
       7 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).
       8 Mathis v. United States, 136 S. Ct. 2243, 2249 (2016).
       9 Id. (citing Shepard v. United States, 544 U.S. 13, 26 (2005); Taylor, 495 U.S. at 602).
       10 Tanksley, 848 F.3d at 350.
       11 COLO. REV. STAT. § 18-18-405(1)(a) (2012).

                                               4
     Case: 16-41152       Document: 00514142373         Page: 5    Date Filed: 09/05/2017



                                      No. 16-41152
Gomez contends that this statute is indivisible, containing alternative means
to commit the offense, and therefore, the categorical approach applies. 12
Because the Colorado offense is broader than the definition of “drug trafficking
offense” contained in the Guidelines, Gomez argues, the 16-level enhancement
should not have been applied.
       The government concedes that § 18-18-405(1)(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.1(B)(iv). 13 The Colorado statute criminalizes the same conduct—possession
of a precursor chemical—and would equally be categorically broader than the
Guideline definition. 14
       Therefore, the government argues that § 18-18-405(1)(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 (1)(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



       12See Mathis v. United States, 136 S. Ct. 2243, 2248 (2016).
       13 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”).
       14 See COLO. REV. STAT. § 18-18-405(1)(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”).
                                             5
     Case: 16-41152       Document: 00514142373         Page: 6     Date Filed: 09/05/2017



                                       No. 16-41152
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 (1)(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.” 15                   The Colorado
Supreme Court has spoken twice on the structure of § 18-18-405(1)(a). First,
in People v. Abiodun, the court described subsection(1)(a) for double jeopardy
purposes as “a series of acts, with reference to the same controlled substance
and governed by a common mens rea,” where the acts are “not themselves
mutually exclusive but overlap in various ways and cover a continuum of
conduct.” 16 Further, the court said, “Nothing in the specific language of the
statute or the history of its enactment suggests an intent to create a separate
offense for each proscribed act.” 17          The conduct criminalized in § 18-18-
405(1)(a) represents a “single crime” that “strongly suggests an intent to
‘criminalize successive stages of a single undertaking,’ ‘encompass[ing] every
act and activity which could lead to the proliferation of drug traffic,’” not
“separate offenses.” 18
       A few years later, the Colorado Supreme Court again confronted the
structure of § 18-18-405(1)(a) in People v. Valenzuela and determined that the



       15 United States v. Uribe, 838 F.3d 667, 670 (5th Cir. 2016), cert. denied, 137 S. Ct.
1359 (2017).
       16 People v. Abiodun, 111 F.3d 462, 466 (Colo. 2005).
       17 Id. at 466-67.
       18 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)).
                                              6
    Case: 16-41152      Document: 00514142373         Page: 7     Date Filed: 09/05/2017



                                     No. 16-41152
offense criminalized “three distinct categories of actions.” 19 There, the court
held that a Colorado extraordinary risk of harm sentencing enhancement
applied to only the “manufacturing, dispensing, selling, or distribution of a
controlled substance and possession of a controlled substance with intent to
manufacture, dispense, sell or distribute” portion of the crime. The court
rejected the application of the enhancement to the simple possession,
conspiracy, or possession of the chemicals or supplies with intent to
manufacture portions of subsection (1)(a). 20 The Valenzuela majority insisted
that the conduct described in the statue remained “one single offense,” and the
crime could be “violated through commission of one of the ‘series of acts’
organized into three distinct categories.” 21 The dissent contended the majority
had assigned “different and irreconcilable meanings” to the different conduct
in the statute and had undermined the holding of Abiodun. 22
      Under Abiodun, Gomez is correct; § 18-18-405(1)(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 (1)(a) are alternative elements.                    If the
“categories of actions” set forth in Valenzuela establishes alternative elements
in subsection (1)(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 (1)(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



      19 People v. Valenzuela, 216 P.3d 588, 592 (Colo. 2009) (emphasis added).
      20 Id. at 593.
      21 Id. at 592.
      22 Id. at 596 (Coats, J., dissenting).

                                            7
    Case: 16-41152         Document: 00514142373         Page: 8     Date Filed: 09/05/2017



                                        No. 16-41152
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 (1)(a) constitutes alternative
means or elements as provided in Mathis. It is clear that Valenzuela did not
expressly overrule Abiodun, but it arguably undermined its holding that
subsection (1)(a) constitutes a single, indivisible crime.
      Assuming the district court erred by not finding § 18-18-405(1)(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.” 23 Under Abiodun and Valenzuela, it was unclear whether
the subsections of section (1)(a) of the Colorado statute were elements or
means.       The district court did not plainly err in its application of the
enhancement in light of the confusing precedent in Colorado law. Because we
find the district court’s error was not plain, we need not reach the third and
fourth prong of the plain error analysis.
                                              IV.
      Colorado jurisprudence allows for conflicting interpretations of Gomez’s
prior crime of conviction, COLO. REV. STAT. § 18-18-405(1)(a). We therefore
hold that the district court did not plainly err in its application of a 16-level




      23   United States v. De La Fuente, 353 F.3d 766, 769 (9th Cir. 2003).
                                               8
    Case: 16-41152   Document: 00514142373     Page: 9   Date Filed: 09/05/2017



                                No. 16-41152
enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(i) for a drug trafficking offense.
AFFIRMED.




                                      9
   Case: 16-41152       Document: 00514142373    Page: 10   Date Filed: 09/05/2017



                                  No. 16-41152
JAMES E. GRAVES, JR., Circuit Judge, 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)(1)(A)(i), I
respectfully dissent.
      Gomez was convicted under Colorado statute section 18-18-405(1)(a).
The Colorado Supreme Court concluded in People v. Abiodun, 111 P.3d 462,
466 (Colo. 2005), that the conduct criminalized in section 18-18-405(1)(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(1)(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 (1)(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


                                       10
   Case: 16-41152       Document: 00514142373    Page: 11   Date Filed: 09/05/2017



                                  No. 16-41152
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.




                                       11
