                                                                  United States Court of Appeals
                                                                           Fifth Circuit
                                                                        F I L E D
        IN THE UNITED STATES COURT OF APPEALS 27, 2007
                                            July
                 FOR THE FIFTH CIRCUIT
                                                                    Charles R. Fulbruge III
                                                                            Clerk


                                 No. 06-40486
                               Summary Calendar


UNITED STATES OF AMERICA

                                            Plaintiff–Appellee
v.

JAIME GUTIERREZ-BAUTISTA

                                            Defendant–Appellant



                 Appeal from the United States District Court
                      for the Southern District of Texas
                               No. 5:05-CR-2210


Before SMITH, WIENER, and OWEN, Circuit Judges.
PRISCILLA R. OWEN, Circuit Judge:
      Defendant-Appellant Jaime Gutierrez-Bautista (Gutierrez) pleaded guilty
without a plea agreement to being unlawfully present in the United States after
deportation. The Presentence Report (PSR) assigned Gutierrez a base offense
level of eight pursuant to U.S.S.G. § 2L1.2(a); a 16-level increase under
§ 2L1.2(b)(1)(A)(i), because he had a prior 1999 Georgia conviction for trafficking
methamphetamine; and a three level decrease pursuant to U.S.S.G. § 3E1.1(a)
and (b) for acceptance of responsibility. Gutierrez’s criminal history of five
resulted in a criminal history category of IV. The applicable guideline advisory
sentencing range was 57 to 71 months of imprisonment.
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      Gutierrez filed two objections to the PSR, contending that (1) the
enhancement of his sentence under 8 U.S.C. § 1326(b) was unconstitutional in
view of Apprendi v. New Jersey, 530 U.S. 466 (2000); and (2) the 16-level
enhancement was improper, because his prior Georgia conviction was not a
“drug trafficking offense” under § 2L1.2(b)(1)(A)(i). The district court overruled
Gutierrez’s objections and sentenced him to 60 months of imprisonment.
Gutierrez timely filed a notice of appeal. We affirm.

                                      I
      Gutierrez was sentenced after the Supreme Court issued its decision in
United States v. Booker, 543 U.S. 220 (2005), and challenged the enhancement
of his sentence under § 2L1.2(b)(1)(A) in the district court. Accordingly, we
review the district court’s interpretation and application of the Sentencing
Guidelines de novo and its factual findings for clear error. United States v.
Villanueva, 408 F.3d 193, 202-03 & n.9 (5th Cir.), cert. denied, 126 S. Ct. 268
(2005); see also United States v. Villegas, 404 F.3d 355, 359-61 (5th Cir. 2005).
      A person convicted of being unlawfully present in the United States after
deportation faces a 16-level sentencing enhancement if, prior to his deportation,
he had been convicted of committing a felony that is “a drug trafficking offense
for   which   the   sentence   imposed       exceeded   13   months.”     U.S.S.G.
§ 2L1.2(b)(1)(A)(i). The commentary to the Guidelines defines “drug trafficking
offense”:
      “Drug trafficking offense”means an offense under federal, state, or
      local law that prohibits the manufacture, import, export,
      distribution, or dispensing of 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, cmt. n.1(B)(iv).


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      In considering whether a prior conviction qualifies as a drug trafficking
offense, we may look to the statutory definition and elements of the offense, the
charging papers, a written plea agreement, a guilty-plea transcript, jury
instructions, and factual findings by the trial judge to which the defendant
assented. Shepard v. United States, 544 U.S. 13, 16-17, 20-21 (2005) (addressing
enhancement under the Armed Career Criminal Act); United States v. Garza-
Lopez, 410 F.3d 268, 273 (5th Cir. 2005).
      The Georgia statute under which Gutierrez was convicted provides, in
pertinent part:
      Any person who knowingly sells, manufactures, delivers, or brings
      into this state or has possession of 28 grams or more of
      methamphetamine, amphetamine, or any mixture containing either
      methamphetamine or amphetamine, as described in Schedule II, in
      violation of this article commits the felony offense of trafficking in
      methamphetamine or amphetamine . . . .

GA. CODE ANN. § 16-13-31(e) (1999) (emphasis added).
      Gutierrez argues that, because the statute may be violated by mere
possession of methamphetamine, the district court erred in determining that his
1999 conviction constituted a “drug trafficking offense” under § 2L1.2(b)(1)(A)(i).
He urges that the district court erred in determining that he admitted both
selling and possessing the methamphetamine when he entered a guilty plea to
the Georgia offense. However, we need not decide whether Gutierrez pleaded
guilty to both selling and possessing, because a conviction for either selling or
possessing 28 grams or more of methamphetamine under GA. CODE ANN. § 16-
13-31(e) constitutes a “drug trafficking offense” under the Sentencing
Guidelines.
      Selling methamphetamine unquestionably constitutes the “distribution or
dispensing of a controlled substance.” § 2L1.2, cmt. n.1(B)(iv). Whether a
conviction for possession under section 16-13-31(a) is a “drug trafficking offense”

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within the meaning of the Guidelines is a closer question, but we are persuaded
by the structure of Georgia’s criminal statutes relating to drug possession and
the Georgia courts’ construction of those statutes that a conviction under section
16-13-31(a) is a drug trafficking offense.
      In Basset v. Lemacks, 370 S.E.2d 146, 148 (Ga. 1988), the Georgia
Supreme Court explained that the Georgia legislature has enacted a three-tiered
scheme for punishing involvement with illegal drugs. The first tier punishes
mere possession of any amount of a controlled substance with a mandatory term
of imprisonment of two years and a maximum term of fifteen years. GA. CODE
ANN. § 16-13-30(a), (c). The second tier punishes the manufacture, delivery,
distribution, dispensing, administering, selling, or possession with intent to
distribute any amount of a controlled substance, with a mandatory term of
imprisonment of five years and a maximum of thirty years. GA. CODE ANN. § 16-
13-30(b), (d). The third tier proscribes “trafficking,” which includes possessing
28 grams or more of methamphetamine or amphetamine. GA. CODE ANN. § 16-
13-31. This third tier “aims at a yet more serious offense,” Basset, 370 S.E.2d at
148, and is punishable—in the case of possession of between 28 and 200 grams
of methamphetamine—with a mandatory ten-year term of imprisonment and a
fine of $200,000. GA. CODE ANN. § 16-13-31(e)(1).
      This three-tiered structure reveals that while Georgia does not consider
the mere possession of a relatively small amount of controlled substance to be
“trafficking,” the possession of a significant quantity of drugs is considered
“trafficking” and is a more serious offense than either simple possession or
possession with intent to distribute. The three-tiered structure also recognizes
that someone who is in possession of a significant quantity (28 grams or more)
of methamphetamine is deemed to have the intent to distribute it. See United
States v. Madera-Madera, 333 F.3d 1228, 1232 (11th Cir. 2003). We agree with


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the Eleventh Circuit that “[i]n making possession of 28 grams of
methamphetamine a ‘trafficking’ offense, Georgia’s trafficking statute
necessarily infers an intent to distribute once a defendant possesses a certain
amount of drugs.” Id.
      As noted, the definition of “drug trafficking offense” in § 2L1.2, cmt.
n.1(B)(iv) includes “possession of a controlled substance (or a counterfeit
substance) with the intent to . . . distribute . . . .” The Sentencing Guidelines do
not define “drug trafficking offense” by the elements of the crime, but by the type
of conduct prohibited by state law. See Madera-Madera, 333 F.3d at 1233. The
state statute at issue need not have “intent to distribute” as a specific element
of the crime, but must merely “prohibit” such conduct. Under federal law, intent
to manufacture, distribute or dispense is an element of a drug trafficking
offense. See 21 U.S.C. § 841(a). Such an intent may be inferred from possession
of a large quantity of a controlled substance. See United States v. Gonzales, 121
F.3d 928, 936 (5th Cir. 1997). Under federal law, possession with the intent to
manufacture, distribute, or dispense five grams or more (up to 50 grams) of
methamphetamine results in a statutory minimum prison sentence of five years.
21 U.S.C. § 841(b)(1)(B)(viii). The Georgia legislature has determined that
possession of 28 grams or more of methamphetamine is a drug trafficking
offense, essentially declaring as a matter of law that the intent to “traffic” exists
when possession of such an amount occurs. Because GA. CODE ANN. § 16-13-31
prohibits conduct that is equivalent to possession with an intent to distribute,
the statute specifies a “drug trafficking offense” for purposes of the Sentencing
Guidelines
      We therefore agree with the Eleventh Circuit that “the federal definition
of drug trafficking in the Guidelines is satisfied by [GA. CODE ANN. § 16-13-31,]
which punishes possession of a significant, designated quantity of drugs.”


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Madera-Madera, 333 F.3d at 1233. The district court did not err in applying the
16-level sentencing enhancement.
                                        II

      Gutierrez also contends that § 1326(b)’s treatment of prior felony and
aggravated felony convictions as sentencing factors, rather than as elements of
the offense that must be found by a jury, is unconstitutional in light of Apprendi.
This contention is foreclosed by Almendarez-Torres v. United States, 523 U.S.
224, 235 (1998), in which the Supreme Court held that treatment of prior
convictions as sentencing factors in § 1326(b)(1) and (2) was constitutional.
Although Gutierrez asserts that a majority of the Supreme Court would now
consider Almendarez-Torres to be incorrectly decided in light of Apprendi, “[t]his
court has repeatedly rejected arguments like the one made by [Gutierrez] and
has held that Almendarez-Torres remains binding despite Apprendi.” United
States v. Garza-Lopez, 410 F.3d 268, 276 (5th Cir. 2005). Gutierrez concedes as
much, raising this claim to preserve it for further review.
                                       III
      The sentence imposed by the district court is AFFIRMED.




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