                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                  March 18, 2005

                                                          Charles R. Fulbruge III
                                                                  Clerk

                             04-40238



                     UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee,

                              Versus

                 HOWARD ALEXANDER GONZALEZ-BORJAS,

                                                 Defendant-Appellant.



          Appeal from the United States District Court
               for the Southern District of Texas
                          7:03 CR-901-1


Before JOLLY, DAVIS and CLEMENT, Circuit Judges.

PER CURIAM:*

     The defendant Howard Alexander Gonzalez-Borjas (“Gonzalez-

Borjas”) appeals his sentence of 46 months’ imprisonment with two

years’ supervised release for violating 8 U.S.C. § 1326(a) & (b).

For the following reasons, we VACATE Gonzalez-Borjas’ sentence

and REMAND for resentencing in accordance with this opinion and

United States v. Booker, 2005 WL 50108, __ S.Ct.__ (2005).



     *
      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this opinion should not be published and is not precedent except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.

                                -1-
                               I.

     On December 4, 2003, Gonzalez-Borjas pled guilty to the

offense of illegal re-entry into the United States after

deportation in violation of 8 U.S.C. § 1326(a) & (b).1    The

presentencing report (“PSR”) recommended a base offense level of

8 pursuant to § 2L1.2 of the Sentencing Guidelines, and a 12-

level increase for a past conviction for a “felony drug

trafficking offense,” pursuant to § 2L1.2(b)(1)(B).   This

recommended enhancement was based on Gonzalez-Borjas’ two prior

convictions for drug offenses in California.   The PSR also

recommended a two-level reduction for acceptance of

responsibility resulting in a total offense level of 18.


     1
      8 U.S.C. 1326 provides in pertinent part:
          (a)In general
               Subject to subsection (b) of this section,
     any alien who--
               (1)has been denied admission, excluded,
     deported, or removed or has departed the United States
     while an order of exclusion, deportation, or removal is
     outstanding, and thereafter
               (2)enters, attempts to enter, or is at any
     time found in, the United States, unless...the Attorney
     General has expressly consented to the alien’s
     reapplying for admission...
     shall be fined under Title 18, or imprisoned not more
     than 10 years, or both;
          (b) Criminal penalties for reentry of certain
     removed aliens
               Notwithstanding subsection (a)of this
     section, in the case of any alien described in such
     subsection---
               (2)whose removal was subsequent to a
     conviction for the commission of an aggravated felony,
     such alien shall be fined under such Title, imprisoned
     not more than 20 years, or both.

                               -2-
     The district court adopted most of the findings of the PSR,

including the characterization of Gonzalez-Borjas’ state drug

offenses as “felony drug trafficking offenses.”    The district

court reduced Gonzalez-Borjas’ offense level by an additional

point for acceptance of responsibility, resulting in a total

offense level of 17.   Based on the total offense level of 17 and

the recommended criminal history category of V, Gonzalez-Borjas’

sentencing range was 46-57 months.    The district court sentenced

Gonzalez-Borjas to 46 months imprisonment, and he took this

appeal.

                                II.

     Gonzalez-Borjas appeals his sentence on the ground that the

district court improperly classified his two prior drug

convictions as “felony drug trafficking offenses” and thus

improperly enhanced his sentence.     Because Gonzalez-Borjas raises

this argument for the first time on appeal, we review the

district court’s enhancement for plain error.2    We find plain

error only if (1)there is an error; (2)the error was clear and

obvious; (3)the error affected the defendant’s substantial

rights; and (4)the error seriously affects the fairness,

integrity, or public reputation of the judicial proceedings.3

     2
      See United States v. Garcia-Cantu, 302 F.3d 308, 310 (5th
Cir. 2002)(citing United States v. Calverley, 37 F.3d 160, 162
(5th Cir. 1994)(en banc)).
     3
      United States v. Miranda, 248 F.3d 434, 443 (5th Cir.
2001)(quoting United States v. Vasquez, 216 F.3d 456, 459 (5th

                                -3-
     To determine whether a prior state conviction can be used to

enhance a sentence, we have used a categorical approach, in which

we examine the elements of the prior offense, rather than the

facts underlying the conviction, to determine whether the prior

offense meets the definition provided in the sentencing

guidelines.4   Thus, our focus is on the statute of conviction,

not the underlying conduct of the prior offense.5   If the statute

criminalizes conduct that does not fall within the enhancement

definition provided in the guidelines, the prior offense cannot

be used to enhance the defendant’s sentence.

     Under § 2L1.2(b)(1)(B), the sentencing guidelines section

applicable to a conviction for illegal re-entry, the offense

level is increased by 12 if the defendant’s prior deportation

followed a conviction for a “felony drug trafficking offense.”6

The commentary on § 2L1.2 of the sentencing guidelines defines

“drug trafficking offense” as follows:

     “Drug trafficking offense” means an offense under


Cir. 2000)).
     4
      See United States v. Rodriguez-Rodriguez, 323 F.3d 317,
318-319 (5th Cir. 2003); United States v. Chapa-Garza, 243 F.3d
921, 924 (5th Cir. 2001)(using categorical approach for prior
aggravated felony conviction); Taylor v. United States, 495 U.S.
575 (1990)(applying categorical approach in determining whether
conviction constituted burglary for purposes of sentencing
enhancement in 18 U.S.C. § 924(e)).
     5
      See United States v. Calderon-Pena, 383 F.3d 254, 257 (5th
Cir. 2004)(en banc).
     6
      U.S. Sentencing Guidelines Manual § 2L1.2(b)(1)(B)(2004).

                                -4-
     federal, state, or local law that prohibits the
     manufacture, import, export, distribution, or
     dispensing of a controlled substance...or the
     possession of a controlled substance...with intent to
     manufacture, import, export, distribute, or dispense.

The central issue in this appeal is whether Gonzalez-Borjas’ two

state drug offenses amount to “drug trafficking offenses” under

this definition.

     In 1996, Gonzalez-Borjas was convicted of violating

California Health and Safety Code § 11352(a), which provides:

     Except as otherwise provided in this division, 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 [a controlled substance of the types
     listed], shall be punished by imprisonment in the state
     prison for three, four, or five years.7

Gonzalez-Borjas argues that this statute encompasses acts that

are not included in the definition of “drug trafficking offense”

under the sentencing guidelines.    We agree.

     Section 11352 can be violated by transporting a controlled

substance for personal use, offering to transport, sell, furnish,

administer, or give away a controlled substance, and solicitation

of the prohibited acts.8   So, unlike the sentencing guidelines’

definition of “drug trafficking offense,” the state need not


     7
      CAL. HEALTH & SAFETY CODE § 11352 (West 1996).
     8
      See People v. Carter, 166 Cal. App. 3d 994, 995 (Cal. Ct.
App. 1985)(Section 11352 does not require a specific intent to
transport contraband for the purpose of sale or distribution,
rather than for personal use.)

                                 -5-
prove that the individual sought to transport the controlled

substance with intent to manufacture, import, export, distribute,

or dispense, in order to convict under § 11352.

     Our conclusion is further supported by the Ninth Circuit’s

decision in United States v. Kovac, 367 F.3d 1116, 1119 (9th Cir.

2004), which held that a conviction under § 11352 did not qualify

as a “controlled substance offense” under § 4B1.2(a) to merit an

enhancement as a “career offender” under § 4B1.1.   The

definitions of “controlled substance offense” and “drug

trafficking offense” are identical for our purposes under the

guidelines,9 which supports our conclusion that a conviction

under § 11352 does not qualify as a “drug trafficking offense” to

enhance a defendant’s sentence.

     The district court also relied on a second conviction for

the 12-level enhancement.   In 2001, Gonzalez-Borjas was convicted


     9
      It appears that the only difference between the two
definitions is that “controlled substance offense” provides that
the offense must be punishable by a term of imprisonment of at
least one year, a requirement not found in the definition of
“drug trafficking offense.” This difference was not important in
Kovac, and therefore does not undercut its persuasiveness.
Section 4B1.2 of the United States Sentencing Guidelines defines
“controlled substance offense” as follows:
     The term “controlled substance offense” means an
     offense under federal or state law, punishable by
     imprisonment for a term exceeding one year, that
     prohibits the manufacture, import, export,
     distribution, or dispensing of a controlled
     substance...or the possession of a controlled
     substance...with intent to manufacture, import, export,
     distribute, or dispense.


                                  -6-
of being an accessory to a violation of § 11352, which is a

violation of California Penal Code § 32.10

     For reasons stated above, the commission of the substantive

violation of § 11352 does not qualify as a “drug trafficking

offense” under the guidelines.   Thus, a conviction as an

accessory to such an offense would not qualify.   Because we find

that the district court erred in using these convictions to

enhance Gonzalez-Borjas’ sentence, we must now decide if the 12-

level enhancement meets the remaining elements of plain error.

Our precedent dictates that it does.

     In United States v. Gracia-Cantu, 302 F.3d 308, 313 (5th

Cir. 2002), the defendant challenged an enhancement of a sentence

of illegally re-entering the United States. We held that an error

that dramatically increased “the recommended imprisonment

range...affected [the defendant’s] substantial rights” and

amounted to plain error.11   Accordingly, we vacated the

defendant’s sentence, which had been improperly increased from a




     10
      CAL. PEN. CODE ANN. § 32 provides:
     Every person who, after a felony has been committed,
     harbors, conceals, or aids a principal in such a
     felony, with the intent that such principal may avoid,
     or escape from arrest, trial, conviction or punishment,
     having knowledge that said principal has committed such
     felony or has been charged with such felony or has been
     convicted thereof, is an accessory to such felony.

     11
          Id.

                                 -7-
range of 21-27 months to a sentence of 70 months imprisonment.12

      In this case, the base offense level for Gonzalez-Borjas was

8.   Absent the 12-level enhancement for a “drug trafficking

offense,” he would have faced the possibility of either a 4-level

enhancement under § 2L1.2(b)(1)(D)13 or an 8-level enhancement

under §2L1.2(b)(1)(C).14   In either case, taking into account a

two-level reduction for acceptance of responsibility, his total

offense level would fall between 10 and 14.15   Coupled with a

criminal history category of V, he would have faced either a

sentencing range of 21-27 months or 33-41 months.16

      As in Gracia-Cantu, all of the elements of plain error are

satisfied in this case.    Because the district court plainly erred

in imposing the 12-level enhancement, we VACATE the defendant’s

sentence and REMAND for resentencing in accordance with this

opinion and United States v. Booker, 2005 WL 50108, __ S.Ct.__



      12
           Id.
      13
      Section 2L1.2(b)(1)(D) instructs the court to increase the
base offense level by 4 levels for “a conviction for any other
felony.”
      14
      Section 2L1.2(b)(1)(C) instructs the court to increase the
base level offense by 8 levels for a conviction of an “aggravated
felony.”
      15
      Under § 3E1.1(b) of the sentencing guidelines, a defendant
is only eligible for a three-level deduction for acceptance of
responsibility if his offense level before deduction is at level
16 or greater.
      16
      U.S. Sentencing Guidelines Manual Ch.5, Pt.A (Sentencing
Table).

                                 -8-
(2005).




          -9-
