                                                                           FILED
                                                               United States Court of Appeals
                                                                       Tenth Circuit

                                                                     January 4, 2013
                    UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
                                                                       Clerk of Court
                                 TENTH CIRCUIT



 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,                     No. 12-2031
          v.                                            D. New Mexico
 PABLO JAVIER VELETA-                          (D.C. No. 2:11-CR-02519-WJ-1)
 DOMINGUEZ,

               Defendant - Appellant.


                            ORDER AND JUDGMENT *


Before HOLMES, HOLLOWAY, and MURPHY, Circuit Judges.



      After examining the briefs and appellate record, this panel granted the

Appellee’s unopposed motion to submit this matter on the briefs. See Fed. R.

App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore submitted without

oral argument.




      *
        This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
I.    Introduction

      Appellant, Pablo Javier Veleta-Dominguez, was charged in a one-count

indictment with illegally reentering the United States. He pleaded guilty and was

sentenced to a forty-six-month term of imprisonment. Veleta-Dominguez appeals

his sentence, arguing the district court erred by increasing his base offense level

by sixteen levels based on the conclusion his 2007 Georgia conviction for the

state crime of trafficking in cocaine is a “drug trafficking offense” as that term is

used in U.S.S.G. § 2L1.2(b). Exercising jurisdiction pursuant to 28 U.S.C. § 1291

and 18 U.S.C. § 3742(a), we reverse Veleta-Dominguez’s sentence and remand

for resentencing.

II.   Background

      After Veleta-Dominguez pleaded guilty to a one-count indictment charging

him with illegally reentering the United States in violation of 8 U.S.C. § 1326(a)

and (b), a Presentence Investigation Report (“PSR”) was prepared by the United

States Probation Office. The PSR applied a sixteen-level enhancement to Veleta-

Dominguez’s base offense level of eight, based on Veleta-Dominguez’s 2007

Georgia conviction for trafficking in cocaine. The PSR characterized this

Georgia conviction as a drug trafficking offense for which the sentence imposed

exceeded thirteen months. See U.S.S.G. § 2L1.2(b)(1)(A)(i). Veleta-

Dominguez’s criminal history score of seven placed him in Criminal History

Category IV. Based on the criminal history category and total offense level of

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twenty-one, 1 the PSR calculated an advisory guidelines range of fifty-seven to

seventy-one months’ imprisonment.

      Veleta-Dominguez filed a written objection to the PSR, arguing his Georgia

conviction was not a drug trafficking offense for purposes of U.S.S.G. § 2L1.2(b).

Specifically, he asserted the Georgia statute he was convicted under prohibits

simple possession of illegal drugs in addition to their sale, manufacture, and

delivery. See Ga. Code Ann. § 16-13-31(a)(1) (“Any person who knowingly sells,

manufactures, delivers, or brings into this state or who is knowingly in possession

of . . . cocaine . . . commits the felony offense of trafficking in cocaine . . . .”).

Thus, Veleta-Dominguez argued, his Georgia conviction is not categorically a

drug trafficking offense and the proper approach is to review the indictment and

judgment under the modified categorical approach. See United States v. Torres-

Romero, 537 F.3d 1155, 1158 (10th Cir. 2008) (“When an examination of the

statute . . . reveals that it reaches a broad range of conduct, some of which merits

an enhancement and some of which does not, courts resolve the resulting

ambiguity by consulting reliable judicial records, such as the charging document,

plea agreement, or plea colloquy.” (quotations omitted)).

      The Georgia state indictment charged that Veleta-Dominguez “did

knowingly possess four hundred (400) grams or more of a mixture containing at


      1
      The PSR also decreased Veleta-Dominguez’s offense level by three levels,
pursuant to U.S.S.G. § 3E1.1(b), based on his acceptance of responsibility.

                                           -3-
least ten percent (10%) Cocaine.” The judgment disclosed that Veleta-

Dominguez pleaded guilty to the lesser included offense of possession of 28-200

grams of cocaine. These documents supported Veleta-Dominguez’s argument that

he was convicted under the part of the Georgia statute that criminalizes simple

possession and, thus, his Georgia conviction does not qualify as a drug trafficking

offense for purposes of the § 2L1.2(b)(1)(A) sixteen level enhancement. See id.

at 1157 (“Simple possession is not a drug trafficking offense.”). The district

court, however, rejected Veleta-Dominguez’s argument, concluding it could infer

from the amount of cocaine Veleta-Dominguez possessed in the Georgia matter

that he was “a distributor.” The court also concluded the structure of the Georgia

statute supported the conclusion Veleta-Dominguez was distributing cocaine

because his conduct resulted in the imposition of a lengthy mandatory minimum

sentence. Accordingly, the court applied the sixteen-level enhancement and

sentenced Veleta-Dominguez to forty-six months incarceration. 2 Veleta-

Dominguez appeals the sentence.

III.   Discussion

       Veleta-Dominguez argues his sentence is procedurally unreasonable

because the district court incorrectly calculated his advisory guidelines range.



       2
       Because the district court concluded a criminal history category IV
overstated Veleta-Dominguez’s criminal history, the court varied downward to a
criminal history category III.

                                        -4-
See United States v. Hildreth, 485 F.3d 1120, 1127 (10th Cir. 2007) (“To impose

a procedurally reasonable sentence, a district court must calculate the proper

advisory Guidelines range . . . .” (quotation omitted)). Specifically, Veleta-

Dominguez asserts his 2007 Georgia conviction is not a drug trafficking offense

and thus the court erred by applying the sixteen level increase to his base offense

level. “We review de novo a district court’s determination that a prior offense is

a crime that can trigger a sentence enhancement under U.S.S.G. § 2L1.2(b).”

Torres-Romero, 537 F.3d at 1157 (quotation omitted).

      The Government concedes, and we agree, that the district court erred by

applying the sixteen-level enhancement. In United States v. Herrera-Roldan, this

court rejected the Government’s argument that a district court, applying the

modified categorical approach, was permitted to infer an intent to distribute

illegal drugs from the defendant’s underlying conduct even though the state

statute at issue made no mention of an intent to distribute. 414 F.3d 1238, 1240

(10th Cir. 2005) (reviewing whether the defendant’s Texas conviction for

possession of marijuana was a drug trafficking offense meriting a twelve-level

enhancement pursuant to U.S.S.G. § 2L1.2(b)). We concluded the inquiry was

confined “to the terms of the statute of conviction” and did not extend to the

defendant’s conduct. Id. at 1241 (“The focus is not on the defendant’s conduct,

but on what the state law prohibits.”). Like the statute at issue in Herrera-

Roldan, the portion of the Georgia statute under which Veleta-Dominguez was

                                         -5-
convicted prohibits the possession of cocaine, not possession with the intent to

manufacture, import, export, distribute, or dispense. See Ga. Code Ann. § 16-13-

31(a)(1); U.S.S.G. § 2L1.2 cmt. n.1(B)(iv); Herrera-Roldan, 414 F.3d at 1240.

Because the district court considered Veleta-Dominguez’s underlying conduct to

arrive at the conclusion he possessed cocaine with the intent to distribute it, the

court erred. Correctly applying the modified categorical approach leads to the

conclusion that Veleta-Dominguez’s Georgia conviction was for simple

possession and, thus, the conviction is not a drug trafficking offense. See Torres-

Romero, 537 F.3d at 1157.

IV.   Conclusion

      The district court’s order is reversed and the matter remanded to the

district court for resentencing.

                                         ENTERED FOR THE COURT


                                         Michael R. Murphy
                                         Circuit Judge




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