                                                                           United States Court of Appeals
                                                                                    Fifth Circuit
                                                                                 F I L E D
           IN THE UNITED STATES COURT OF APPEALS 16, 2007
                                                July
                    FOR THE FIFTH CIRCUIT
                                                                              Charles R. Fulbruge III
                                                                                      Clerk


                                       No. 06-41236


UNITED STATES OF AMERICA

                                                  Plaintiff-Appellee
v.

RICARDO FLORES-MERAS

                                                  Defendant-Appellant



                   Appeal from the United States District Court
                        for the Southern District of Texas
                                 No. 2:06-CR-175


Before JOLLY, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:*
       Ricardo Flores-Meras pleaded guilty to illegal re-entry after deportation
in violation of 8 U.S.C. § 1326(a), (b)(2). Flores-Meras was sentenced to thirty-
nine months of imprisonment, and he now appeals his sentence. We vacate and
remand for resentencing.
                           FACTS AND PROCEEDINGS
       Border patrol agents discovered Flores-Meras, a Mexican national, during
a border patrol checkpoint inspection.            Flores-Meras had previously been


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
                                       No. 06-41236

deported from the United States and had not applied for or received permission
to re-enter from the Attorney General or the Secretary of Homeland Security.
Flores-Meras pleaded guilty to violating 8 U.S.C. § 1326(a), (b)(2).
       The district court determined that Flores-Meras’s base offense level was
eight, increased the offense level by twelve because it found that Flores-Meras
had a prior conviction for a “felony drug trafficking offense for which the
sentence imposed was thirteen months or less,” U.S.S.G. § 2L1.2(b)(1)(B) (2005),
and then reduced the offense level by three for acceptance of responsibility. This
calculation resulted in an offense level of seventeen. Given Flores-Meras’s
criminal history category of IV, the guidelines sentencing range was thirty-seven
to forty-six months of imprisonment.
       Flores-Meras raised two objections to this sentencing guidelines range.
First, he argued that the way in which 8 U.S.C. § 1326 treats prior convictions
is unconstitutional.1 Second, he objected to the twelve level enhancement for
having committed a prior felony drug trafficking offense.
       The district court rejected both of these arguments and sentenced Flores-
Meras to thirty-nine months of imprisonment. Flores-Meras timely appealed.
                              STANDARD OF REVIEW
       This court will “review a district court’s interpretation and application of
the guidelines de novo and its findings of fact for clear error.” United States v.
Aguirre-Villa, 460 F.3d 681, 682 (5th Cir. 2006).
                                      DISCUSSION
       Flores-Meras argues that the district court erred in applying a twelve level
enhancement for having a conviction for a prior “felony drug trafficking offense
for which the sentence imposed was 13 months or less.”                           U.S.S.G. §


       1
         While raising this issue on appeal, Flores-Meras concedes that relief is foreclosed by
the Supreme Court’s opinion in Almendarez-Torres v. United States, 523 U.S. 224 (1998). We
reject this argument.

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2L1.2(b)(1)(B) (2005). He asserts that the statute under which he was convicted
punishes conduct that is broader than that covered by the sentencing guidelines
definition of a “drug trafficking offense.”             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 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.
U.S.S.G. § 2L1.2 cmt. (1)(B)(iv) (2005).
       The Colorado statute under which Flores-Meras pleaded guilty permitted
conviction for possession of drugs with the intent to either sell or distribute
them. COL. REV. STAT. § 18-18-405(1)(a). The relevant Colorado statutory
definition of “sale” includes “a barter, an exchange, or a gift, or an offer therefor.”
Id. § 18-18-403(1).       As such, Flores-Meras asserts that one way in which
someone could violate this statute would be by possessing drugs with the intent
to offer to barter, exchange, or give them as a gift, but without the intent to
actually sell or otherwise distribute them.
       This court has previously held that a statute permitting conviction for
merely making an offer to sell drugs encompasses conduct outside of the
guidelines definition of a “drug trafficking offense.” See United States v. Garza-
Lopez, 410 F.3d 268, 274 (5th Cir.), cert. denied, 126 S. Ct. 298 (2005).2 Because
it permits punishment for possession of drugs with the intent to offer to sell or
give them away, but without the intent to actually sell or give them away, we


       2
         More recently, in United States v. Ford, ___ F.3d ___, 2007 WL 1501745 (5th Cir. May
24, 2007) (petition for panel rehearing pending), this court examined a statutory provision that
(1) permitted punishment for drug possession with the intent to deliver the drugs and (2)
defined “delivery” of drugs to include merely making an offer to sell drugs. The court vacated
the defendant’s sentence, holding that the statute of conviction was broader than the
guidelines definition of a “controlled substance offense,” which for relevant purposes is the
same as the guidelines definition of a “drug trafficking offense.” Id. at *4.

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conclude that a defendant can violate COL. REV. STAT. § 18-18-405(1)(a) without
committing a “drug trafficking offense” under the sentencing guidelines.
      This conclusion does not end our inquiry, however. Even if the statutory
definition of a crime includes conduct that does not fall within the guidelines
definition of a “drug trafficking offense,” the court may look to certain other
pieces of evidence in seeking to ascertain whether the defendant’s conviction was
for conduct covered under the guidelines definition. These documents include
the charging document, plea agreement, plea colloquy transcript, and other
judicial records regarding the factual basis of the plea. Gonzales v. Duenas-
Alvarez, 127 S. Ct. 815, 819 (2007).
      The charging document, an information, is not in the record. The record
does include a statement supporting Flores-Meras’s plea of guilty (“guilty plea
statement”), which he signed. Contained in this statement is the following
sentence: “I wish to plead guilty to the offense of Possession With Intent to
Distribute a Controlled Substance — Schedule II, a Class III Felony, as set out
in Count One of the Information.”
      Following this statement, Flores-Meras continued:
      The elements of the offense of Possession With Intent to Distribute
      a Controlled Substance — Schedule II to which I am pleading guilty
      are:
            1.    That the defendant, Ricardo Flores-Meraz [sic],
            2.    in the State of Colorado, County of Garfield, on or about
                  December 7, 2004,
            3.    knowingly possessed or attempted to possess,
            4.    with intent to sell or distribute
            5.    methamphetamine.
On the same page of the guilty plea statement is the following definition of
“sale”: “‘Sale’ means a barter, an exchange, or a gift, or an offer therefor, and
each such transaction made by any person, whether as the principal, proprietor,
agent, servant, or employee.” (emphasis added).



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      The district court concluded, and the government urges on appeal, that
Flores-Meras’s statement that he wished to plead guilty to drug possession
“With Intent to Distribute” constituted an admission that he possessed the drugs
with an intent to distribute them, not sell them. On the government’s view, this
admission places his conviction within the guidelines definition of a “drug
trafficking offense” and thereby justifies the twelve level enhancement.
      Flores-Meras responds that this declaration in the guilty plea statement
was merely a recitation of the title of the offense, rather than an assertion that
he was pleading to a particular version of the statutory language.             The
government correctly points out that the statutory title of COL. REV. STAT. § 18-
18-405 is “Unlawful distribution, manufacturing, dispensing, sale, or
possession,” not “Possession With Intent to Distribute a Controlled Substance
— Schedule II.”
      Flores-Meras also indicates that his purported “admission” is followed by
a recitation of the elements of the crime, including “intent to sell or distribute”
as well as a definition of “sale,” which would be superfluous if Flores-Meras was
specifically pleading to the possession with intent to distribute sub-species of the
statute, rather than the statute as a whole. He argues that these inclusions
rebut the notion that the previous sentence was a description of a narrower set
of offense characteristics to which he was admitting.
      We agree. Accordingly, we hold that the district court clearly erred in
finding that Flores-Meras, in his guilty plea statement, specifically admitted to
possession with intent to distribute. The Supreme Court has stated that “once
the court of appeals has decided that the district court misapplied the
Guidelines, a remand is appropriate unless the reviewing court concludes, on the
record as a whole, that the error was harmless, i.e., that the error did not affect
the district court’s selection of the sentence imposed.” Williams v. United States,



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                                 No. 06-41236

503 U.S. 193, 203 (1992); see also United States v. Davis, 478 F.3d 266 (5th Cir.
2007) (relying on Williams post-Booker). This error was not harmless.
                                CONCLUSION
      Flores-Meras’s sentence is VACATED, and this matter is REMANDED for
resentencing.




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