     Case: 13-40529      Document: 00512619920         Page: 1    Date Filed: 05/06/2014




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

                                                                                     FILED
                                      No. 13-40529                                May 6, 2014
                                                                                Lyle W. Cayce
UNITED STATES OF AMERICA,                                                            Clerk


                                                 Plaintiff - Appellee,
v.

RAUL NUNEZ–SEGURA,

                                                 Defendant - Appellant.



                   Appeal from the United States District Court
                        for the Southern District of Texas
                            USDC No. 7:12-CR-1793-1


Before SMITH, ELROD, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
           Raul Nunez–Segura pleaded guilty to illegal reentry following
deportation in violation of 8 U.S.C. § 1326(a) and was sentenced to fifty-seven
months of imprisonment. Nunez–Segura appeals his sentence, arguing that
the district court incorrectly applied a sixteen-level “drug trafficking offense”
sentence enhancement based on his prior criminal conviction in California.
Because we agree that Nunez–Segura’s conviction was not a drug trafficking
offense under the Guidelines, we VACATE and REMAND for resentencing.



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 13-40529
                                        I.
      On October 30, 2012, a grand jury returned an indictment charging
Nunez–Segura with illegal reentry following deportation in violation of
8 U.S.C. § 1326(a). Nunez–Segura pleaded guilty to the indictment without
the benefit of a plea agreement. The district court accepted Nunez–Segura’s
guilty plea and ordered the preparation of a pre-sentence investigation report
(“PSR”).
      In completing the PSR, the probation officer determined that Nunez–
Segura had a base offense level of eight.           The probation officer also
recommended       a    sixteen-level     sentence     enhancement       pursuant
§ 2L1.2(b)(1)(A)(i) of the United States Sentencing Guidelines (“U.S.S.G.” or
“Guidelines”) on the ground that Nunez–Segura’s prior 2006 and 2007
California convictions constituted “drug trafficking offenses.”          Nunez–
Segura’s 2007 conviction, which is the focus of this appeal, was for the
violation of section 11379(a) of the California Health and Safety Code (West
2007), a statute prohibiting drug-related activities. The PSR recommended
that section 11379(a) could be violated in a number of ways, including by
“giving away” a controlled substance, which would not constitute a drug
trafficking offense. Even so, the probation officer determined that the 2007
conviction still constituted a drug trafficking offense because Nunez–Segura
admitted in his waiver and guilty plea to the conviction that he “was willfully
& unlawfully in possession of methamphetamine for transportation & w/the
specific intent to sell,” which according to the probation officer fell within the
scope of the Guidelines’ definition of a drug trafficking offense.
      According to the PSR, the application of the sixteen-level enhancement,
combined with a three-level reduction for acceptance of responsibility, gave
Nunez–Segura a total offense level of twenty-one. The PSR also gave Nunez–
Segura eight criminal history points, resulting in a criminal history category
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of IV. Due to his total offense level and criminal history category, Nunez–
Segura was subject to an imprisonment range of fifty-seven to seventy-one
months.
       At sentencing, Nunez–Segura objected to the sixteen-level sentence
enhancement. He argued, as he does now on appeal, that his 2007 California
conviction was not a drug trafficking offense. Although the district court did
not accept the PSR in full, 1 it agreed with the PSR that Nunez–Segura’s 2007
conviction was a drug trafficking offense and accordingly sentenced him to
fifty-seven months of imprisonment. Nunez–Segura filed a timely notice of
appeal.
                                            II.
       “[W]e review a sentencing decision for reasonableness regardless of
whether the sentence imposed is inside or outside the Guidelines range.”
United States v. Rodriguez, 711 F.3d 541, 547 (5th Cir. 2013) (en banc). To do
so, we “first ensure that the district court committed no significant
procedural error” and then “consider the substantive reasonableness of the
sentence.”    Gall v. United States, 552 U.S. 38, 51 (2007).              Here, Nunez–
Segura contends only that the district court committed procedural error by
improperly calculating the Guidelines range and does not challenge the
substantive reasonableness of his sentence.
       Nunez–Segura argues that his 2007 California conviction does not
constitute a drug trafficking offense under § 2L1.2(b)(1)(A)(i) of the

       1 The district court did not adopt the PSR’s recommendation that Nunez–Segura’s
2006 conviction also supported the application of the sixteen-level sentence enhancement.
Nor did the government brief the issue on appeal. See, e.g., United States v. Whitfield, 590
F.3d 325, 346 (5th Cir. 2009) (“[A] party waives any argument that it fails to brief on
appeal.”). In any event, Nunez–Segura’s 2006 conviction could not have supported a
sixteen-level sentence enhancement because he did not receive any criminal history points
for the conviction. U.S.S.G. § 2L1.2(b)(1)(A). Rather, only a twelve-level sentence
enhancement is appropriate for drug trafficking offenses that do not receive criminal
history points. Id.
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Guidelines and that it therefore was error for the district court to impose a
sixteen-level sentence enhancement on that basis.          He reasons that his
statute of conviction, section 11379(a) of the California Health and Safety
Code, encompasses conduct that does not constitute a drug trafficking offense
under the Guidelines. He further contends that, because possession with
intent to sell is not an element of a section 11379(a) offense, the district court
incorrectly used the “intent to sell” admission in his waiver and guilty plea to
determine that his conviction qualified as a drug trafficking offense.        We
agree.
      A defendant convicted of illegal reentry, like Nunez–Segura, is subject
to a sixteen-level sentence enhancement if he was previously convicted of a
drug trafficking offense. U.S.S.G. § 2L1.2(b)(1)(A)(i). The Guidelines define a
drug trafficking offense as “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.”       Id. § 2L1.2 cmt.
n.1(B)(iv). Characterization of a prior conviction as a drug trafficking offense
is a question of law that we review de novo. United States v. Henao–Melo,
591 F.3d 798, 801 (5th Cir. 2009).
      To determine whether a prior conviction constitutes a drug trafficking
offense, we use the categorical approach outlined in Taylor v. United States,
495 U.S. 575 (1990). See id. “Under the categorical approach, the analysis is
grounded in the elements of the statute of conviction rather than a
defendant’s specific conduct.”    Rodriguez, 711 F.3d at 549.      Thus, a prior
conviction qualifies as a drug trafficking offense if the statute of conviction
matches the definition contained in the Guidelines. See Descamps v. United
States, 133 S. Ct. 2276, 2283 (2013) (holding that a defendant’s prior
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California burglary conviction did not constitute a violent felony for purposes
of the Armed Criminal Career Act). 2 If, however, the statute of conviction is
broader than the Guidelines’ definition, the conviction does not qualify “even
if the defendant actually committed the offense [defined in the Guidelines].”
See id.; see also Henao–Melo, 591 F.3d at 802 (explaining that under the
categorical approach, “the court first ‘looks to the elements of [the] prior
offense, rather than to the facts underlying the conviction’” (alteration in
original) (quoting United States v. Garza–Lopez, 410 F.3d 268, 273 (5th Cir.
2005))).
      Even so, a defendant’s conduct is not completely irrelevant. When the
statute of conviction is “divisible,” we employ a “modified categorical
approach.” Descamps, 133 S. Ct. at 2281; see also United States v. Rodriguez,
523 F.3d 519, 524 (5th Cir. 2008). A divisible statute is one that “sets out one
or more elements of the offense in the alternative—for example, stating that
burglary involves entry into a building or an automobile.” Descamps, 133 S.
Ct. at 2281. Pursuant to the modified categorical approach, a sentencing
court may consider the defendant’s conduct from documents such as the
“charging document, written plea agreement, transcript of plea colloquy, and
any explicit factual finding by the trial judge to which the defendant
assented” to ascertain which of the alternative elements of the statute of
conviction the charged conduct implicated. Shepard v. United States, 544
U.S. 13, 16 (2005); see also Rodriguez, 523 F.3d at 524 (“If . . . a defendant
has violated a statute that contains multiple disjunctive sections that
prohibit conduct that will support a sentence enhancement and other conduct



      2  Although Descamps addressed the use of Taylor’s categorical approach in the
context of the Armed Criminal Career Act, “[t]his court applies Taylor’s categorical
approach to interpretations of the Sentencing Guidelines.” United States v. Stoker, 706
F.3d 643, 648–49 (5th Cir. 2013) (internal quotation marks omitted).
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                                    No. 13-40529
that will not support an enhancement, the court may look to ‘certain
conclusive records made or used in adjudicating guilt’ to determine which
section applies to the defendant’s conviction.”). 3
      Critically, as the Supreme Court recently explained in Descamps, the
modified categorical approach “retains the categorical approach’s central
feature: a focus on the elements, rather than the facts, of a crime.” 133 S. Ct.
at 2285. “All the modified approach adds is a mechanism for making [the
comparison between the statue of conviction and the Guidelines] when a
statute lists multiple, alternative elements.” See id. It does not permit a
sentencing court “to look behind [the defendant’s] conviction in search of
record evidence that he actually committed the [offense defined in the
Guidelines].” See id. at 2293; see also United States v. Miranda–Ortegon, 670
F.3d 661, 663 (5th Cir. 2012) (“[W]e may look beyond the elements and the
fact of conviction only for the limited purpose of ascertaining which of the
disjunctive elements the charged conduct implicated.”).
      Applying these principles to this case, it is undisputed that Nunez–
Segura’s 2007 statute of conviction is a divisible statute, i.e., one that “sets
out one or more elements of the offense in the alternative.” Descamps, 133 S.
Ct. at 2281.    At the time of Nunez–Segura’s conviction, 4 section 11379(a)
prescribed punishment for “every person who transports, imports into this
state, sells, furnishes, administers, or gives away, or offers to transport,
import into this state, sell, furnish, administer, or give away, or attempts to
import into this state or transport any controlled substance.”




      3  These are known as “Shepard documents.” See, e.g., United States v. Medina–
Torres, 703 F.3d 770, 777 (5th Cir. 2012).
       4 California has enacted a new version of section 11379 since Nunez–Segura’s 2007

conviction. See Cal. Health & Safety Code § 11379 (West 2014).
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       Some of these alternative elements fall within the definition of a drug
trafficking offense under the Guidelines, which covers the manufacture,
import, export, distribution, dispensing of, or offer to sell a controlled
substance (or possession with the intent to do these things). See U.S.S.G.
§ 2L1.2 cmt. n.1(B)(iv). For example, importation of a controlled substance
falls within the scope of both section 11379(a) and the Guidelines’ definition.
Other alternative elements do not.               See Garza–Lopez, 410 F.3d at 274
(explaining that section 11379(a) criminalizes some conduct falling outside
the scope of the Guidelines’ definition of a drug trafficking offense). Thus,
our inquiry boils down to ascertaining, pursuant to the modified categorical
approach, which of the alternative elements of section 11379(a) Nunez–
Segura’s conduct implicated. See Rodriguez, 523 F.3d at 524.
       To answer that question, we look to Nunez–Segura’s waiver and guilty
plea for his 2007 conviction, wherein he acknowledged as a factual basis for
his    plea   that     he    “was   willfully    &    unlawfully      in   possession     of
methamphetamine for transportation & w/the specific intent to sell.” See
Shepard, 544 U.S. at 26.            Comparing this statement to the alternative
elements of section 11379(a), it is apparent that Nunez–Segura was convicted
under the “transport” element of section 11379(a). 5 According to our binding
precedent in Garza–Lopez, 410 F.3d at 274, a conviction under the transport
element of section 11379(a) does not constitute a drug trafficking offense.
None of the other alternative elements of section 11379(a) apply. As a result,
Nunez–Segura’s 2007 conviction was not a drug trafficking offense.



       5  Even assuming arguendo that it cannot be determined which of the divisible
elements Nunez–Segura’s conduct implicated, we then consider “whether the least culpable
act constituting a violation of [the] statute constitutes” a drug trafficking offense. United
States v. Moreno–Florean, 542 F.3d 445, 449 (5th Cir. 2008). As we previously determined
in Garza–Lopez, section 11379(a) punishes at least some conduct that does not constitute a
drug trafficking offense under the Guidelines. See 410 F.3d at 274.
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      The government argues that Nunez–Segura’s admission that he
possessed methamphetamine with an intent to sell makes his 2007 conviction
eligible for the sentence enhancement. See U.S.S.G. § 2L1.2 cmt. n.1(B)(iv).
But possession with intent to sell is not one of the alternative elements of
section 11379(a) and is therefore irrelevant in applying the modified
categorical approach in this case.        See Descamps, 133 S. Ct. at 2286
(explaining that whether the defendant actually did break and enter was
irrelevant because the statute of conviction had no breaking and entering
element).
      Nor is possession with intent to sell implied in the transport element of
section 11379(a).     The California Supreme Court has said regarding the
transport element of a similarly worded marijuana statute that “the offense
of illegal transportation [does not] require[] a specific intent to transport
contraband for the purpose of sale or distribution.” People v. Rogers, 486 P.2d
129, 134 (Cal. 1971). Rather, transportation with intent to sell is relevant to
a different subsection of section 11379.       See Cal. Health & Safety Code
§ 11379(b) (West 2007) (increasing the punishment for the “transport for
sale” of a controlled substance). Nunez–Segura was not charged or convicted
under that statute.
      Finally, the government argues that we should follow the Ninth
Circuit’s approach in United States v. Delgado–Moreno, 495 F. App’x 847 (9th
Cir. 2012), where the court held under similar circumstances that a
defendant’s prior conviction under section 11379(a) constituted a drug
trafficking offense. We disagree. First, Delgado–Moreno is an unpublished
Ninth Circuit case issued prior to the Supreme Court’s decision in Descamps,
which reversed the Ninth Circuit’s application of the modified categorical
approach. See Descamps, 133 S. Ct. at 2293. Second and more importantly,
the Delgado–Moreno court employed the modified categorical approach in the
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manner rejected by the Supreme Court in Descamps. That is, it did not use
the applicable Shepard document solely to determine which of the alternative
elements of the statute of conviction formed the basis of the defendant’s
conviction. See Delgado–Moreno, 495 F. App’x at 849. Rather, it used the
Shepard document to determine whether the defendant actually committed
the offense defined in the Guidelines. Compare id. with Descamps, 133 S. Ct.
at 2293 (explaining that a sentencing court may not “look behind [the
defendant’s] conviction in search of record evidence that he actually
committed the [offense]”).
      For the foregoing reasons, we VACATE Nunez–Segura’s sentence and
REMAND for resentencing.




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