                        REVISED MARCH 23, 2000

                    UNITED STATES COURT OF APPEALS
                         For the Fifth Circuit



                              No. 99-10848


                      UNITED STATES OF AMERICA,

                                                    Plaintiff-Appellee,


                                  VERSUS


                         MARIA LUISA PRINCIPE,

                                                    Defendant-Appellant.




             Appeal from the United States District Court
                  for the Northern District of Texas
                            February 11, 2000
Before KING, Chief Judge, and DUHÉ and DeMOSS, Circuit Judges.

DeMOSS, Circuit Judge:

     Defendant-appellant Maria Luisa Principe appeals from the

sentence imposed by the district court following her pleading

guilty, pursuant to a plea agreement, to two counts of knowingly

possessing    counterfeit    alien   registration    receipt   cards   in

violation of 18 U.S.C. § 1546(a).



                             I.   BACKGROUND

     Following execution of a search warrant and during a search of

Principe's residence on January 29, 1999, INS agents recovered

among other things, three fraudulent alien registration receipt
cards and two fraudulent social security cards from Principe's

purse.   The first card featured Principe's photograph and was in

the name of Laura Castanon. A second card also featured Principe's

photograph, but was in the name of Victoria Rodriguez.                      And a third

card was in the name of Reginaldo Gallardo.                            The two social

security cards recovered from Principe's purse were in the names of

Laura Castanon and Victoria Rodriguez.                 Also recovered during the

search of Principe's residence were 18 fraudulent but blank INS

notice of      action    forms    (form       no.    1-797C)    used    for   obtaining

replacement alien registration receipt cards; 3 fraudulent Mexican

birth certificates in the name of Rick Meza; 4 fraudulent but blank

Mexican birth certificates; 17 fraudulent but blank Mexican entry

forms (form no. F.M.6); 15 fraudulent but blank Mexican military

service booklets; and 19 fraudulent Certificates of Naturalization.

All told, 90 fraudulent documents were found at Principe's home.

Before executing the search warrant, the agents determined that

Principe was a lawful resident alien.

      On April 20, 1999, a six-count superseding indictment was

returned against Principe.            That indictment charged Principe with

one count of encouraging an alien to illegally enter the United

States in violation of 8 U.S.C. § 1324(a)(1)(iv); two counts of

possessing     a   fraudulent         alien       registration    receipt     card   in

violation of 18 U.S.C. § 1546(a); one count of possession of forged

Immigration and Naturalization documents in violation of 18 U.S.C.

§   1546(a);    one     count    of    possession       of     five    or   more   false

identification documents in violation of 18 U.S.C. § 1028(a)(3);


                                              2
and one count of possession of counterfeit naturalization documents

in violation of 18 U.S.C. § 1426(c).   Pursuant to a plea agreement,

Principe entered a guilty plea to the two counts charging her with

possession of fraudulent alien registration receipt cards (counts

two and three) and all remaining counts were dismissed at the time

of her sentencing on July 16, 1999.

       At sentencing, the district court permitted the government to

call as a witness, Special Agent Edward Koranda of the Immigration

and Naturalization Service (“INS”), and over the objections of

Principe's counsel, Agent Koranda testified regarding his opinion

of the potential uses Principe had for the two fraudulent alien

registration receipt cards featuring her photograph.   He testified

that she could have: (1) given the cards to someone who looked like

her; (2) used the cards as examples of the quality of fraudulent

card she could obtain for others; or (3) used the cards herself to

conceal her identity in the event she were apprehended smuggling

aliens into the United States (i.e., if caught, she would produce

the fake registration cards and be deported as Laura Castanon or

Victoria Rodriguez, and then later return to the United States

under her own name using her valid registration card).    On cross-

examination, Koranda conceded that he considered more than just the

two fraudulent alien registration cards mentioned in the indictment

and the factual resume to formulate his opinions.1          He also


   1
       The dissent asserts that neither the addendum to the PSR nor
Agent Koranda’s testimony "draw from Principe’s activities that
fall into the category of relevant conduct."      Agent Koranda’s
concession on cross-examination belies this assertion.

                                  3
testified    that     up   until      the    week       before    sentencing     he    had

consistently told the United States Attorney's office that he

believed Principe had the cards for only the third use he testified

to,   that   is,    that     Principe       had    the    cards     to   use    as   false

identification in the event she was apprehended smuggling illegal

aliens into the United States.

      At sentencing, Principe maintained that she had the two alien

registration       receipt    cards     only      for     the    purpose   of   securing

employment in the United States during the time she was waiting for

her own legitimate registration receipt card to be processed.                          The

district court however, considering the INS agent's testimony and

all of the references in the pre-sentence report (“PSR”) to the

other fraudulent documents retrieved from Principe's residence,

adopted the recommendation of the United States Probation Office

that Principe be sentenced under U.S.S.G. § 2L2.1, which guideline

deals with, among other things, trafficking in documents related to

naturalization,       citizenship,          or    legal    resident      status.2      The

      2
         The factor which prompted the probation officer to select
U.S.S.G. § 2L2.1 as the appropriate guideline for Principe’s
sentence was the presence in the heading of that guideline of the
word "trafficking." That word is not used anywhere in the statute
of conviction and it is not defined anywhere in the Guidelines.
The most applicable dictionary meaning of "trafficking" is "to
carry on trade or commercial dealings" and "to trade or deal in a
specific commodity or service, often of an illegal nature."
WEBSTER’S COLLEGIATE DICTIONARY 1414 (1991). The only portion of 18
U.S.C. § 1546(a) which even remotely contemplates "trafficking" is
that portion of the third paragraph thereof which reads: "whoever
... sells or otherwise disposes of, or offers to sell or otherwise
dispose of, or utters, such visa, permit or other document to any
person not authorized by law to receive such document."        This
language could support a determination that § 2L2.1 is the most
appropriate of the two guidelines specified in the Appendix A -
Statutory Index as being applicable to § 1546. There is nothing,

                                             4
district court overruled Principe's objection to the use of § 2L2.1

(with a base offense level of 11) and rejected her argument that

§ 2L2.2 (with a base offenses level of 8), dealing with the

fraudulent acquisition of documents related to naturalization,

citizenship, or legal resident status for one's personal use was

the more appropriate guideline to use in determining the sentence

to be imposed.     Principe has timely appealed her sentence, arguing

that the district court improperly utilized § 2L2.1, rather than

§ 2L2.2.



                                 II.    DISCUSSION

       The sole issue before us is whether the district court erred

in sentencing Maria Luisa Principe under U.S.S.G. § 2L2.1 rather

than   under    U.S.S.G.     §   2L2.2.       We    review   a   district   court's

selection of the applicable sentencing guideline de novo.                       See

United States v. Hornsby, 88 F.3d 336, 338 (5th Cir. 1996).                   After

carefully reviewing the record in this case, and for the reasons

discussed      below,   we   find      that   the    district    court   committed

reversible error in sentencing Principe under § 2L2.1 rather than

§ 2L2.2.

       When sentencing a defendant, the district court must first

determine which offense guideline section is most applicable to the

offense of conviction, generally by reference to the guidelines'


however, in the counts of the indictment to which Principe pleaded
guilty nor in the plea agreement nor in the factual resume which
even intimates, much less expressly states, that Principe’s conduct
related to "selling," "trading" or "dealing" in "such documents" to
or with any person not authorized by law to receive such documents.

                                          5
statutory     index   found   at   Appendix      A   thereto.        See   U.S.S.G.

§ 1B1.2(a), comment 1.        If more than one offense guideline section

is referenced for a particular statute, the district court must

select the most appropriate section based upon the nature of

conduct charged in the count for which the defendant was convicted.

See id.; see also United States v. Beard, 913 F.2d 193 (5th Cir.

1990).

     In this case, the district court was faced with the dilemma of

choosing between two competing offense guidelines sections, both of

which were made applicable by the guidelines' statutory index to 18

U.S.C. § 1546(a).      The first, § 2L2.1, deals with “trafficking” in

documents     relating   to    naturalization,          citizenship,       or   legal

resident status and carries a base offense level of 11.                          The

second, § 2L2.2, deals with fraudulent acquisition of documents

relating to naturalization, citizenship, or legal resident status

for one's “own use” and carries a base offense level of 8.                      Thus,

in order to determine which offense guideline section to apply when

sentencing Principe, the district court was required to select the

most appropriate of the two applicable sections based upon the

nature of conduct charged in the counts for which she pleaded

guilty and was convicted.

     As   a    preliminary    matter,       we   note   that   the    first     three

paragraphs of 18 U.S.C. § 1546(a), to which Principe twice pleaded

guilty, provide as follows:

              (a) Whoever knowingly forges, counterfeits,
              alters, or falsely makes any immigrant or
              nonimmigrant visa, permit, border crossing
              card, alien registration receipt card, or

                                        6
          other document prescribed by statute or
          regulation for entry into or as evidence of
          authorized stay or employment in the United
          States, or utters, uses, attempts to use,
          possesses, obtains, accepts, or receives any
          such visa, permit, border crossing card, alien
          registration receipt card, or other document
          prescribed by statute or regulation for entry
          into or as evidence of authorized stay or
          employment in the United States, knowing it to
          be forged, counterfeited, altered, or falsely
          made, or to have been procured by means of any
          false claim or statement, or to have been
          otherwise procured by fraud or unlawfully
          obtained; or

               Whoever, except under direction of the
          Attorney General or the Commissioner of the
          Immigration and Naturalization Service, or
          other proper officer, knowingly possesses any
          blank permit, or engraves, sells, brings into
          the United States, or has in his control or
          possession any plate in the likeness of a
          plate designed for the printing of permits, or
          makes any print, photograph, or impression in
          the likeness of any immigrant or nonimmigrant
          visa, permit or other document required for
          entry into the United States, or has in his
          possession a distinctive paper which has been
          adopted by the Attorney General or the
          Commissioner    of   the    Immigration    and
          Naturalization Service for the printing of
          such visas, permits, or documents; or

               Whoever, when applying for an immigrant
          or nonimmigrant visa, permit, or other
          document required for entry into the United
          States, or for admission to the United States
          personates another, or falsely appears in the
          name of a deceased individual, or evades or
          attempts to evade the immigration laws by
          appearing under an assumed or fictitious name
          without disclosing his true identity, or sells
          or otherwise disposes of, or offers to sell or
          otherwise dispose of, or utters, such visa,
          permit, or other document, to any person not
          authorized by law to receive such document; or

                              ....

18 U.S.C. § 1546(a).


                                7
     Clearly this statute is designed to punish several types of

conduct.   Those acts described in the first paragraph revolve

around a defendant's individual procurement, possession, or use of

various fraudulent immigration documents.       The second paragraph

concerns a defendant's procurement, possession, or use of materials

which would enable the defendant to manufacture or provide various

fraudulent immigration documents to others.       The third paragraph

defines a real mixture of prohibited conduct including that which

would enable the defendant to assist others.     That the guidelines'

statutory index references the potential applicability of both

§ 2L2.1 and § 2L2.2 for violations of 18 U.S.C. § 1546(a) is

therefore, no surprise.   Presumably, the “personal use” guideline

section, § 2L2.2, could be applicable to violations charged under

the first paragraph, and the “trafficking” section, § 2L2.1, could

be applicable to violations charged under the second and third

paragraphs.   We note that the two counts of the indictment to which

Principe pleaded guilty reference simple “possession” under the

first paragraph of 18 U.S.C. § 1546(a).

     Principe argues that the district court should have restricted

its analysis of which guideline section applied to the language

contained in her counts of conviction, and it should not have taken

into consideration the other relevant conduct related to counts

which the government dismissed.       The government contends that in

order to determine whether Principe's possession was for the

purpose of “trafficking” -- making § 2L2.1 applicable, or for her

“own use” -- making § 2L2.2 applicable, the district court had to


                                  8
look to evidence at the sentencing hearing other than the direct

language of the counts of conviction.            The government specifically

asserts that “the evidence at the sentencing hearing was properly

focused on the decisive issue of whether Principe possessed the

cards in question for her own use.” Without citation to authority,

the government further contends that the initial factual issue

raised by the heading of § 2L2.2, that is, whether the cards were

for Principe's “own use,” is reviewable only for clear error, and

that   the     district     court's    resolution      of    this        factual     issue

necessarily required it to look beyond the conduct charged in the

counts for which the Principe was convicted.                  The government does

cite Beard for the proposition that, in choosing between two

possible guidelines, the district court may look to the general

conduct       of   the    defendant    “irrespective         of    the     statute      of

conviction.”       Beard, 913 F.2d at 198.

       The government's reliance on Beard, however, is misplaced. In

that case, we did hold that the district court could look to the

general conduct of Beard irrespective of the statute of conviction,

in order to sentence him under § 2F1.1, a fraud guideline, as

opposed to § 2J1.3, a perjury guideline, but we did so only on the

basis of two findings: first, because the offense to which Beard

pleaded guilty specifically contained as an element “fraudulently

making    a    false     statement,”   see    Beard,    913       F.2d    at    198;   and

secondly, because in Beard, as part of his plea, the defendant

stipulated and admitted to the very conduct giving rise to the

applicability       of    the   more   severe   fraud       guideline,         and   under


                                          9
§   1B1.2(a),   sentencing   under   the   more   severe   guideline   was

therefore appropriate.

      We agree with Principe that the district court can look only

to the offense of conviction in order to determine which guideline

section was applicable. In this situation, where the defendant has

pleaded guilty pursuant to a plea agreement, the district court

must look first at the language of the indictment, then to the

language of the plea agreement and then to the stipulation of facts

contained in the factual resume supporting the plea agreement. See

U.S.S.G. § 1B1.2(a) (stating that when a plea agreement contains a

stipulation that specifically establishes a more serious offense

than the offense of conviction, the defendant may then be sentenced

to the higher offense); see also Beard, 913 F.2d at 198 (once a

defendant stipulates and acknowledges facts which establish a more

serious offense, the district court may consider those facts when

fashioning a sentence).

      Here, the indictment, the plea agreement, and the factual

resume   support   only   the   conclusion   that   Principe   knowingly

possessed two fraudulent alien registration receipt cards which

featured her photograph and two different names.             The factual

resume filed in support of Principe's guilty pleas contained only

the following facts:

           On November 20, 1998, MARIA LUISA PRINCIPE,
           did   knowingly   possess   two   counterfeit
           Immigration Naturalization alien registration
           receipt cards. The cards were in the names of
           Laura Castanon and Victoria Rodriguez and
           depicted Maria Luisa Principe's photograph.
           Maria Luisa Principe knew the cards were
           counterfeit.

                                     10
      The elements of the offenses to which Principe entered two

guilty pleas;    that       is,   two   separate    violations     of   18   U.S.C.

§ 1546(a), were recited in the factual resume as follows:

      1.   That the defendant knowingly possessed an
           Immigration   Naturalization Service alien
           registration receipt card;

      2.   That the document was counterfeited; and

      3.   That the defendant knew at the time of the
           possession that the document had been forged
           [sic] counterfeited.

      Principe neither admitted nor stipulated to any facts or

elements of her offense of conviction other than those contained in

the factual resume.          Thus, all that could be gleaned from the

indictment, the plea agreement, and the factual resume, is that

Principe   pleaded    guilty      to    “possessing”      two   fraudulent     alien

registration    receipt      cards      featuring   her    photograph    and    two

different names.      And thus, under § 1B1.2(a) and our own precedent

in Beard, without some reference in either the plea agreement or

the factual resume which would constitute either a stipulation or

an admission to other conduct which might be characterized as

“trafficking,” the appropriate offense guideline section could not

be   § 2L2.1.    As     a    result,     and   combined    with   the   fact    that

Principe's possession in her own purse of the two cards bearing her

own likeness, only with differing names, by the government's and

the district court's own concession, could reasonably have been for

her own use were she to be arrested for smuggling aliens, we

conclude that the appropriate sentencing guideline section to have




                                          11
been applied in this case was the “personal use” section, § 2L2.2.3



                            III.    CONCLUSION

     Having conducted an exhaustive review of the record of this

case, and for all of the foregoing reasons, we conclude that the

district court committed reversible error in sentencing Maria Luisa

Principe under U.S.S.G. § 2L2.1, and we therefore VACATE the

sentence   imposed   and   REMAND   for   resentencing   under   U.S.S.G.

§ 2L2.2.




     3
        Few circuit courts have addressed the propriety of using
§ 2L2.1 over § 2L2.2 when a defendant is convicted of the
possession of a relatively minor number of false or fraudulent
immigration documents.    Those which have, tend to focus on the
availability of a personal use by the defendant for the fraudulent
documents in determining whether the “personal use” section, §
2L2.2, is more appropriate. See, e.g., United States v. Domanski,
48 F.3d 1222, 1995 WL 87178, at *3 (7th Cir. March 2, 1995)
(unpublished) (“Domanksi was convicted for possession of two
counterfeit passports. Having been a citizen of the United States
since 1989, he had no need to obtain any . . . for his own use.
Even if he did, Domanski could not have used the passports found in
his possession –- they were not in his name and the photographs
were not of Domanski.”).        Here, the two fraudulent alien
registration receipt cards found in Principe's purse did in fact
feature her photograph, only the names were different.       In our
view, it is plausible that the alien registration receipt cards at
issue in this case were available for Principe's personal use.


                                     12
KING, Chief Judge, dissenting:



     I respectfully dissent.         I would affirm Principe’s sentence.

     The    PSR   applied   §   2L2.1    of   the    Sentencing   Guidelines.

Principe objected, arguing that the nature of the fraudulent

documents    alleged   in   the    counts     of    conviction   required   the

application of § 2L2.2.           An Addendum to the PSR explained the

rationale for application of § 2L2.1 as follows:

          The probation office supports the guideline
     computations    in  the   Presentence   Report   and  the
     application of USSG § 2L2.1 to determine the defendant’s
     offense level computations.        In determining what
     guideline would be most appropriate, the probation
     officer did not consider relevant conduct in this case,
     which consisted of the other documents found at the
     defendant’s residence when the search warrant was
     executed.    The probation office determined that the
     application of USSG § 2L2.1 was the appropriate guideline
     based on the defendant becoming an Unlawful [sic]
     Permanent Resident of the United States on June 9, 1997.
     The defendant had in her purse three fraudulent alien
     registration cards and two fraudulent social security
     cards.    As mentioned in the Presentence Report, the
     fraudulent alien registration cards found in the names of
     Laura Castanon and Victoria Rodriguez had the defendant’s
     photograph.    The defendant had no reason to possess
     fraudulent alien registration cards in the two female
     names, since she was a Lawful Permanent Resident of the
     United States.      A copy of the fraudulent alien
     registration receipt card in the name Victoria Rodriguez
     had an expiration date of August 5, 2001. The fraudulent
     alien registration receipt card in the name Laura
     Castanon had an expiration date of April 3, 2001. Based
     on the aforementioned, there was no reason for the
     defendant to be in possession of the fraudulent
     documents, and it is more difficult to believe that the
     defendant possessed those documents for her own use.
     Thus, the application of USSG § 2L2.1 is appropriate.

The district court, in overruling Principe’s objections, said only

that it accepted the government’s arguments that the photo could be

used by someone else who resembled Principe and also could be used

                                        13
by her in helping other aliens illegally enter the United States.4

That conclusion is amply supported by those portions of the PSR and

its Addendum and of the testimony of the agent that focused on the

counts of conviction.

     It is no answer to this case to limit the inquiry to the

indictment, the plea agreement and the factual résumé because none

of those answers the question why Principe possessed the two

fraudulent alien registration cards.              That question has to be

answered before a decision can be made as to which of the two

Guidelines sections is the most appropriate.             The Addendum and the

testimony of the INS agent offered three possible reasons why

Principe possessed the cards.                Those reasons do not draw on

Principe’s activities that fall into the category of relevant

conduct;   they    draw   only     on   the   evidence   for   the   counts    of

conviction.       The   district    court     accepted   two   of   those   three

reasons, and the two accepted dictated the application of § 2L2.1.

In view of the fact that Principe was a lawful permanent resident

and had no immediate need for a fraudulent registration card, it’s

hard for me to fault the district court’s factual conclusion that

she possessed the cards for use by someone else resembling her or

for helping other aliens illegally enter the United States. That’s

the end of it as far as I am concerned.

     4
        In stating that the district court considered the INS
agent’s testimony and all of the references in the PSR to the other
fraudulent documents retrieved from Principe’s residence, the panel
majority suggests that those items formed the basis of the district
court’s conclusion to apply § 2L2.1.       There is absolutely no
indication in the district court’s explanation for its decision
that supports that suggestion.

                                        14
15
