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        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT


                                                                United States Court of Appeals

                                No. 13-40924
                                                                         Fifth Circuit

                                                                       FILED
                                                                 March 27, 2015
                                                                  Lyle W. Cayce
UNITED STATES OF AMERICA,                                              Clerk


                                          Plaintiff-Appellee,
v.

JUAN FRANCISCO MARTINEZ-LUGO,

                                          Defendant-Appellant.




                Appeal from the United States District Court
                     for the Southern District of Texas




Before DAVIS, DENNIS, and COSTA, Circuit Judges.
PER CURIAM:
      We sua sponte withdraw the prior panel opinion, United States v.
Martinez-Lugo, 773 F.3d 678 (5th Cir. 2014), and substitute the following:
      Defendant-Appellant Juan Francisco Martinez-Lugo appeals from the
district court’s application of a 16-level sentence enhancement pursuant to
U.S.S.G. § 2L1.2(b)(1)(A)(i) for his having been removed following a conviction
for a drug trafficking offense for which the sentence was greater than 13
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                                No. 13-40924


months based upon Martinez’s 2002 Georgia conviction for possession with
intent to distribute marijuana. For the reasons set out below, we AFFIRM the
sentence.
                       FACTS AND PROCEEDINGS
      Martinez-Lugo was charged in an indictment with being unlawfully
present in the United States following removal. He pleaded guilty to the
indictment without the benefit of a written plea agreement. In the Presentence
Report (“PSR”), the Probation Office determined that Martinez-Lugo’s base
offense level was eight. It applied a 16-level enhancement pursuant to U.S.S.G.
§ 2L1.2(b)(1)(A)(i) for having been removed following a conviction for a drug
trafficking offense for which the sentence was greater than 13 months. The
recommendation was based on Martinez-Lugo’s 2002 Georgia conviction for
possession with intent to distribute marijuana, for which Martinez-Lugo was
sentenced to five years of imprisonment with two of those years probated.
      Applying a two-level reduction for acceptance of responsibility, the
Probation Office determined that Martinez-Lugo’s total offense level was 22.
Based upon Martinez-Lugo’s total offense level of 22 and criminal history
category of IV, it calculated that his guidelines sentence range was 63–78
months of imprisonment and that his guidelines sentence range would be 57–
71 months of imprisonment if he were granted an additional one-level
reduction for acceptance of responsibility. As an attachment to the PSR, the
Probation Office included the accusation, guilty plea documentation, and final
judgment from Martinez-Lugo’s 2002 conviction, and those documents showed


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that Martinez-Lugo had been convicted under GA. CODE ANN. § 16-13-30(j)(1)
(2002).
         When the case was first called for sentencing, Martinez-Lugo raised an
objection to the 16-level enhancement on the ground that his prior Georgia
conviction did not qualify as a “drug trafficking offense” under the Supreme
Court’s reasoning in Moncrieffe v. Holder, 133 S. Ct. 1678 (2013), which
considered the same Georgia statute. The district court granted Martinez-Lugo
a continuance, and he subsequently filed a written objection to the PSR on that
basis.
         The district court overruled Martinez-Lugo’s objection. The Government
moved for the additional one-level reduction for acceptance of responsibility,
and the district court granted the motion. The district court additionally ruled
that Martinez-Lugo’s criminal history category was “artificially exaggerated”
and that a criminal history category of III was more accurate. Based upon a
total offense level of 21 and criminal history category of III, it determined that
Martinez-Lugo’s      guidelines   sentence   range   was    46–57    months     of
imprisonment. It sentenced Martinez-Lugo to 46 months of imprisonment
without a term of supervised release. Martinez-Lugo filed a timely notice of
appeal on the basis that the district court misapplied the 16-level sentence
enhancement for a “drug trafficking offense” under § 2L1.2(b)(1)(A)(i).
                           STANDARD OF REVIEW
         Martinez-Lugo is not the first appellant to argue that, following
Moncrieffe, a conviction “for giving away or offering to give away [i.e., for no
remuneration] a controlled substance” does not constitute “a drug trafficking
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offense under . . . § 2L1.2(b)(1)(A)(i).” 1 He is, however, the first to have
preserved the error by raising the objection at the district court, so we are not
limited to plain error review, which must deny relief where, as here, “the issue
is subject to reasonable debate and the error is not readily apparent.” 2
       Because Martinez-Lugo preserved his objection to the sentence
enhancement, “[w]e review the district court’s interpretation and application
of the sentencing guidelines de novo and its findings of fact for clear error.” 3
“We review a district court’s conclusion that a prior state conviction constitutes
a drug trafficking offense de novo.” 4
                                     DISCUSSION
       On appeal, Martinez-Lugo renews his argument that his prior conviction
under GA. CODE ANN. § 16-13-30(j)(1) (2002) does not constitute a “drug
trafficking offense” for purposes of applying the sentence enhancement of
§ 2L1.2(b)(1)(A)(i). Martinez-Lugo points to the Supreme Court’s emphasis in
Moncrieffe that “trafficking” generally requires remuneration, 5 and he argues
that the Georgia statute is overbroad because it also criminalizes possession
with intent to distribute for no remuneration. 6 On the other hand, the



1 United States v. Perez-Melgarejo, 552 F. App’x 327, 328 (5th Cir. 2014); see also United
States v. Gomez-Martinez, 566 F. App’x 308 (5th Cir. 2014), and United States v. Cortes-
Tolentino, 577 F. App’x 388 (5th Cir. 2014).
2 Perez-Melgarejo, 552 F. App’x at 328.
3 United States v. Baker, 742 F.3d 618, 620 (5th Cir. 2014) (citing United States v. Cisneros–

Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008)).
4 United States v. Lopez-Salas, 513 F.3d 174, 178 (5th Cir. 2008) (citing United States v.

Gutierrez-Ramirez, 405 F.3d 352, 355-56 (5th Cir. 2005)).
5 See Moncrieffe, 133 S. Ct. at 1693.
6 As the Supreme Court recognized in Moncrieffe when analyzing the same Georgia statute,

“we know that Georgia prosecutes this offense when a defendant possesses only a small
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                                     No. 13-40924


Application Note to § 2L1.2(b)(1)(A)(i) defines as a “drug trafficking offense”
precisely the type of conviction at issue here.
      Section 2L1.2(b)(1)(A)(i) provides:
             (b) Specific Offense Characteristic

                    (1) Apply the Greatest:

                    If the defendant previously was deported, or
                    unlawfully remained in the United States,
                    after—

                           (A) a conviction for a felony that is (i) a
                           drug trafficking offense for which the
                           sentence imposed exceeded 13 months; . . .
                           increase by 16 levels if the conviction
                           receives criminal history points under
                           Chapter Four . . . . 7

      Application Note to § 2L1.2(b)(1)(A)(i) provides:
             “Drug trafficking offense” means 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. 8

      The Georgia statute under which Martinez-Lugo was convicted provides:
             (j) (1) It is unlawful for any person to possess, have
             under his control, manufacture, deliver, distribute,

amount of marijuana . . . and that ‘distribution’ does not require remuneration, see, e.g.,
Hadden v. State, 181 Ga. App. 628, 628–629, 353 S.E.2d 532, 533–534 (1987).” Id. at 1686.
7 U.S.S.G. § 2L1.2(b)(1)(A)(i).
8 U.S.S.G. § 2L1.2(b)(1)(A)(i), Application Note § 1(B)(iv) (emphasis added).

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              dispense, administer, purchase, sell, or possess with
              intent to distribute marijuana. 9

       The fact that Martinez-Lugo’s Georgia conviction has the same label—
“possession with intent to distribute”—as an enumerated offense listed in the
Guidelines definition of “drug trafficking offense” does not automatically
warrant application of the enhancement. 10 Instead, we assume that an
enumerated offense refers to the “generic, contemporary meaning” of that
offense. 11 The familiar categorical approach then requires us to ensure that the
elements of that generic enumerated offense are congruent with the elements
of the defendant’s prior offense. 12 In determining the generic, contemporary
meaning of an enumerated offense, we consult sources such as state and
federal statutes, the Model Penal Code, respected treatises, and dictionaries. 13
       The proper standard of comparison in this categorical inquiry is the
elements of the enumerated offense of “possession with intent to distribute,”




9 GA. CODE ANN. § 16-13-30(j)(1) (2002) (emphasis added). The parties concede that the
charging document in the Georgia case narrowed Martinez-Lugo’s conviction to the
“possession with intent to deliver” offense of this divisible statute.
10 See United States v. Sanchez-Sanchez, --- F.3d ---, 2015 WL 791395, at *1 n.9 (5th Cir. Feb.

24, 2015) (“State-law labels do not control this inquiry[.]” (quoting United States v. Ramirez,
557 F.3d 200, 205 (5th Cir. 2009)); United States v. Ellis-Garcia, 357 F. App’x 569, 570 (5th
Cir. 2009) (explaining that “even if a prior offense is designated as ‘robbery’ in a state penal
code, it may not qualify as a robbery” as that term is used in the Guidelines).
11 United States v. Dominguez-Ochoa, 386 F.3d 639, 643 (5th Cir. 2004) (quoting Taylor v.

United States, 495 U.S. 575, 598 (1990)).
12 See United States v. Rodriguez, 711 F.3d 541, 557–58 (5th Cir. 2013) (en banc) (clarifying

the categorical inquiry as it applies to non-common law offenses enumerated in the
Guidelines).
13 Taylor, 495 U.S. at 590; United States v. Reyes-Mendoza, 665 F.3d 165, 166–67 (5th Cir.

2011); Dominguez-Ochoa, 386 F.3d at at 644–46.
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not the general meaning of the Guidelines term “drug trafficking.” 14 That is
because the Guidelines definition reflects a determination that certain
enumerated offenses—such as possession with intent to distribute—qualify for
the “drug trafficking offense” enhancement so long as the offenses are
consistent with the generic, contemporary meaning of the enumerated offense
that the Commission was contemplating when it adopted the definition. 15
       Martinez-Lugo never argues that the elements of Georgia’s possession
with intent to distribute offense differ from the elements of the generic,
contemporary “possession with intent to distribute” offense. 16 Instead, he
argues that Moncrieffe v. Holder controls because of its general statement, in
the context of discussing the “aggravated felony” provision of the Immigration
and Nationality Act (INA), that “[s]haring a small amount of marijuana for no
remuneration, let alone possession with intent to do so, does not fit easily into




14  See, e.g., Reyes-Mendoza, 665 F.3d at 167 (focusing on whether the state court
“manufacturing” offense fit within the generic, contemporary meaning of “manufacturing”
offense that was enumerated in definition of “drug trafficking” offense); see also Rodriguez,
711 F.3d at 557–58 (comparing state “sexual assault of a child” offense with generic offense
of “sexual abuse of a minor” that is enumerated offense for “crime of violence” enhancement”);
United States v. Moreno-Florean, 542 F.3d 445, 456 (5th Cir. 2008) (considering whether
California “kidnapping” statute is broader than enumerated “kidnapping” offense listed in
definition of “crime of violence”).
15 See United States v. Gonzales, 484 F.3d 712, 716 (5th Cir. 2007) (noting that courts should

not look to the generic, contemporary meaning of “drug trafficking offense” because the
section 2L1.2 commentary defines that term by listing enumerated offenses).
16 Cf. United States v. Rodriguez-Negrete, 772 F.3d 221, 228 (5th Cir. 2014) (finding that

sentencing sheet stating that defendant pleaded guilty to “PWID/Dist. Of Cocaine/LSD/other
Narcotic drugs in Sch. 1(b) & (c)/Sched. II, 1st offense” satisfied “drug trafficking offense”
enhancement under plain language of Sentencing Guidelines and noting defendant did not
argue otherwise).
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the everyday understand of trafficking.” 17 Before responding more fully to this
argument, we note that on the required categorical comparison between the
elements of Georgia’s possession with intent to distribute and those of the
generic offense, Moncrieffe seems to support the district court’s application of
the enhancement. In comparing the Georgia offense with the federal
possession with intent to distribute statute, 18 Moncrieffe recognized that the
elements are the same. 19 Thus, Georgia’s statute “necessarily proscribe[s]
conduct that is an offense under the [Controlled Substances Act].” 20
       If it recognized that Georgia’s possession with intent to distribute statute
has the same elements as its federal counterpart, why did Moncrieffe
nonetheless find that a conviction under the Georgia statute did not require
mandatory deportation? The answer lies in Moncrieffe’s focus on the



17  Moncrieffe, 133 S. Ct. at 1693 (some internal quotation marks and ellipsis omitted)
(partially quoting Carachuri-Rosendo v. Holder, 560 U.S. 563, 566 (2010)).
18 The federal statute is only one source of the generic, contemporary meaning of “possession

with intent to distribute.” See supra note 13 and accompanying text. The Moncrieffe court
looked only to the federal Controlled Substances Act’s definition for comparison because the
Court was considering whether Moncrieffe’s prior conviction was an “aggravated felony”
under the INA, which defines drug trafficking crimes with reference to the Controlled
Substances Act. This is another reason why Moncrieffe is not controlling on the Guidelines
question which requires a broader survey for the categorical inquiry than just a comparison
with the federal statute. Notably, neither the dissent nor Martinez-Lugo, cite any other
sources—such as treaties, a consensus of state laws, or the Model Penal Code—that indicate
the generic meaning of possession with intent to distribute differs from the Georgia offense.
19 Because Georgia’s statute “makes it a crime to ‘. . . possess with intent to distribute

marijuana,’” and there is “no question that it is a federal crime to ‘possess with intent to
. . . distribute . . . a controlled substance,’ 21 U.S.C. § 841(a)(1), one of which is marijuana,
§ 812(c),” “the state and federal provisions correspond.” Moncrieffe, 133 S. Ct. at 1685. And
when the government argued that the “‘elements’ of Moncrieffe’s Georgia offense are the
same as those of the CSA offense: (1) possession (2) of marijuana (a controlled substance),
(3) with intent to distribute it,” the Court did not disagree with that premise. Id.
20 Id. at 1685.

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“aggravated felony” provision of the INA. That statute looks to whether the
state offense would constitute a felony under the federal drug laws. 21 The Court
held that the Georgia conviction did not fulfill that felony requirement because
“distributing a small amount of marihuana for no remuneration” is a
misdemeanor under federal law. 22 Further demonstrating this limited context
in Moncrieffe, the two cases it cites in the passage upon which Martinez-Lugo
relies are ones interpreting the “aggravated felony” provision of the INA. 23
       We nonetheless recognize the difficulty of this issue and the attraction
of Martinez-Lugo’s argument in light of the Supreme Court’s statement that
“[s]haring a small amount of marijuana for no remuneration, let alone
possession with intent to do so, does not fit easily into the everyday
understanding of ‘trafficking,’ which ordinarily means some sort of commercial
dealing.” 24 We conclude, however, that Moncrieffe does not control this case
given that its holding rested on the specific requirement of the INA’s
aggravated felony provision requiring that the state offense would constitute a
felony under the federal drug laws. In defining the Guidelines enhancement at
issue here, the Sentencing Commission did not impose that requirement.


21 Id. at 1686, 1683 (citing 8 U.S.C. § 1101(a)(43)(B), which incorporates the definition of drug
trafficking crime defined in 18 U.S.C. § 924(c)).
22 Id. at 1688; see supra note 6.
23 See Carachuri-Rosendo, 560 U.S. at 570 (“[F]or a state conviction to qualify as an

‘aggravated felony’ under the INA, it is necessary for the underlying conduct to be punishable
as a federal felony.”); Lopez v. Gonzales, 549 U.S. 47, 60 (2006) (holding that because there
“is no reason to think Congress meant to allow the States to supplant its own classifications
when it specifically constructed its immigration law to turn on them[,] . . . a state offense
constitutes a ‘felony punishable under the Controlled Substances Act’ only if it proscribes
conduct punishable as a felony under that federal law”).
24 Moncrieffe, 133 S. Ct. at 1693 (some internal quotation marks and ellipsis omitted)

(partially quoting Carachuri-Rosendo v. Holder, 560 U.S. 563, 566 (2010)).
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Instead it required that the state offense match an enumerated offense such
as “possession with the intent to distribute.” The Guidelines took a different
approach than the INA does in trying to assess the seriousness of the state
offense. Section 2L1.2 applies a 16-point enhancement for a prior felony that
is a “drug trafficking offense” for which the sentence imposed exceeded 13
months, a 12-point enhancement for a prior felony that is a “drug trafficking
offense” for which the sentence imposed was 13 months or less, an 8-point
enhancement for an aggravated felony regardless of the sentence imposed, and
a 4-point enhancement for any other felony. 25 The focus is thus both on the
length of the sentence and whether the conviction was a felony under state
law.
       As the dissent notes, the Guidelines commentary defines the 8-point
“aggravated felony” enhancement to incorporate the INA’s definition of
aggravated felony at issue in Moncrieffe. The dissent then contends that it is
anomalous to impose the greater 16-point enhancement for a Georgia
conviction when it would not qualify for the lesser 8-point enhancement under
Moncrieffe. This analysis misses a few points. First, inclusion of a separate
“aggravated felony” enhancement in Section 2L1.2 arguably supports our view
that the INA-focused Moncrieffe analysis does not control the distinct “drug
trafficking” enhancement. 26 Second, the existence of a drug trafficking offense
is not enough to result in the 16-point enhancement; the offense must have



25U.S.S.G. § 2L1.2(b)(1)(A)–(D).
26See Sosa v. Alvarez-Machain, 542 U.S. 692, 711 n.9 (2004) (explaining that when a drafter
“uses certain language in one part of [a legal provision] and different language in another,
the court assumes different meanings were intended”).
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been serious enough to have actually resulted in a sentence of greater than 13
months. Third, the INA’s aggravated felony provision sweeps in twenty
categories of crimes—including receipt of stolen property, failure to appear,
and gambling and prostitution offenses 27—that the Sentencing Commission
may have wanted to treat as less serious than drug trafficking offenses.
Whether that determination is the best policy decision or not, it is one to which
we owe deference. 28 And of course, with the Guidelines now being advisory,
sentencing courts have discretion to account for mitigating factors, including
the actual conduct involved in prior offenses, in determining a sentence that is
“sufficient, but not greater than necessary,” to reflect the statutory sentencing
factors. 29
                                     CONCLUSION
       For these reasons, we decline to extend Moncrieffe to the different
scheme embodied in the Guidelines absent clear direction to do so. Under the
plain language of § 2L1.2(b)(1)(A)(i) and its Application Note, a “drug
trafficking offense” includes the offense of “possession with intent to
distribute.” Under a straightforward application of the categorical approach,
the Georgia offense under which Martinez-Lugo was convicted has the same
elements as the generic possession with intent to distribute offense.



27 8 U.S.C. § 1101(a)(43)(G), (J), (K), (Q), (T).
28 See Stinson v. United States, 508 U.S. 36, 45 (1993) (“The Commission, after all, drafts the
guidelines as well as the commentary interpreting them, so we can presume that the
interpretations of the guidelines contained in the commentary represent the most accurate
indications of how the Commission deems that the Guidelines should be applied to be
consistent with the Guidelines Manual as a whole as well as the authorizing statute.”).
29 18 U.S.C. § 3553(a).

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  We therefore AFFIRM the sentence.




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                                 No. 13-40924
JAMES L. DENNIS, Circuit Judge, dissenting:

      In Moncrieffe v. Holder, 133 S. Ct. 1678 (2013), the Supreme Court held
that a conviction under a Georgia criminal statute that criminalizes the
gratuitous sharing of a small amount of marijuana, or possession with the
intent to do so, does not categorically constitute “illicit trafficking in a
controlled substance” and thus is not an “aggravated felony” for purposes of
disqualifying a non-citizen for discretionary relief under the Immigration and
Nationality Act (INA). The sole issue on appeal here is whether Martinez-
Lugo’s prior conviction under the same Georgia statute constitutes a “drug
trafficking offense” justifying the imposition of a sixteen-level offense
enhancement—the highest possible sentencing enhancement under United
States Sentencing Guidelines (U.S.S.G.) § 2L1.2(b). Applying the principles
and reasoning of Moncrieffe, I conclude that it does not.
      Although the INA and U.S.S.G. § 2L1.2(b) are not directly coextensive,
their application involves substantially similar principles and concepts that
must be carefully applied to avoid sentencing outcomes that are inconsistent
with the plain text and purpose of U.S.S.G. § 2L1.2. Further, our circuit
precedent in U.S.S.G. cases requires that we apply the same categorical
approach that the Court used in Moncrieffe; thus we ought to carefully heed,
rather than disregard, the teachings of the Moncrieffe Court in that respect.
Moncrieffe makes clear that “a drug trafficking offense” does not include the
sharing of a small amount of marijuana for no remuneration, or possession
thereof with intent to do so. Consequently, a proper and full application of the
categorical approach here demonstrates that, similar to the situation in
Moncrieffe, the Georgia crime of conviction does not constitute a drug

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                                  No. 13-40924


trafficking offense. Accordingly, Martinez-Lugo’s prior Georgia conviction does
not constitute a federal “drug trafficking offense” and, therefore, may not be
used to enhance his sentence under U.S.S.G. § 2L1.2. I therefore respectfully
dissent from the majority’s decision and opinion to the contrary.
                                          I.
                                          A.
      Martinez-Lugo pleaded guilty to being unlawfully present in the United
States following removal, in violation of 8 U.S.C. § 1326(a). The district court
determined that his base offense level was eight pursuant to U.S.S.G.
§ 2L1.2(a) and, after overruling Martinez-Lugo’s objection, found that he was
subject to a sixteen-level offense enhancement under § 2L1.2(b)(1)(A)(i) based
on his prior Georgia conviction for a crime designated as “possession with
intent to distribute marijuana.”      With the sixteen-level enhancement, the
district court calculated Martinez-Lugo’s Guideline advisory range as 46-57
months of imprisonment and sentenced him to 46 months in prison.
      Section 2L1.2(b)(1)(A)(i) instructs, in relevant part, that district courts
increase a defendant’s offense level by sixteen if “the defendant previously was
deported, or unlawfully remained in the United States, after . . . a conviction
for a felony that is . . . a drug trafficking offense for which the sentence imposed
exceeded 13 months.” USSG § 2L1.2(b)(1)(A)(i). The “Application Note” to
§2L1.2 defines a “drug trafficking offense” as, inter alia, “an offense under
federal, state, or local law that prohibits the . . . possession of a controlled
substance . . . with intent to manufacture, import, export, distribute, or
dispense.” U.S.S.G. § 2L1.2(b)(1)(A)(i), Application Note § 1(B)(iv).


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      In 2002, Martinez-Lugo pleaded guilty to a Georgia felony offense under
Ga. Code Ann. § 16-13-30(j)(1), which provides that:
      It is unlawful for any person to possess, have under his control,
      manufacture, deliver, distribute, dispense, administer, purchase,
      sell, or possess with intent to distribute marijuana.
      The charging documents presented to the district court established that
Martinez-Lugo pleaded guilty to possession with intent to distribute
marijuana, and was sentenced to serve three years in confinement and two
years on probation. The Georgia code defines “distribute” as follows: “to deliver
a controlled substance, other than by administering or dispensing it.” Ga. Code
Ann. § 16-13-21(11). As the Supreme Court held in Moncrieffe, Georgia case
law reveals that this is a broad definition and that distribution does not
necessarily require a sale. See Dorsey v. State, 212 Ga. App. 479, 480, 441
S.E.2d 891, 892 (1994) (“[A] distribution may or may not be a sale.”); see also
Capers v. State, 273 Ga. App. 427, 428, 615 S.E.2d 126, 128 (2005) (“[T]he
offense of distribution of [a controlled substance] does not require that the
offender receive a payment.”).
      In Moncrieffe, the Court analyzed whether possession with intent to
distribute under Ga. Code Ann. § 16-13-30(j)(1) constitutes an “aggravated
felony” under the Immigration and Nationality Act (INA). 133 S. Ct. at 1682-
83. The relevant INA provision, 8 U.S.C. § 1101(a)(43), defines an aggravated
felony as, inter alia, a conviction for “illicit trafficking in a controlled
substance,” as defined in 18 U.S.C. § 924(c)(2). Id. at 1683. Section 924(c)(2),
in turn, defines “drug trafficking crime” as, inter alia, crimes that qualify as
felonies punishable under the federal Controlled Substances Act (CSA). Id. A

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                                  No. 13-40924


felony under the CSA is, generally, any offense listed therein that is punishable
by imprisonment for more than one year. Id. It may be a felony under the CSA
to possess with the intent to distribute a controlled substance (including
marijuana); however, this offense is punishable only as a misdemeanor under
the CSA if it involves only the distribution of “a small amount of marihuana
for no remuneration.” Id.; see 21 U.S.C. §§ 841(b), 844. In other words, if the
crime involves only a small amount of marijuana, without an exchange of
money or other consideration, then the offense is treated as simple drug
possession and characterized as a misdemeanor offense under the CSA. Id. at
1686.
        Examining the manner in which Georgia courts have prosecuted
individuals under Ga. Code Ann. § 16-13-30(j)(1), the Moncrieffe Court
concluded that because a defendant under this Georgia statute may be
prosecuted for giving away a small amount of marijuana for no remuneration,
it is not categorically an aggravated felony. The Court explained that
        the fact of a conviction for possession with intent to distribute
        marijuana, standing alone, does not reveal whether either
        remuneration or more than a small amount of marijuana was
        involved. It is possible neither was; we know that Georgia
        prosecutes this offense when a defendant possesses only a small
        amount of marijuana, see, e.g., Taylor v. State, 260 Ga. App. 890,
        581 S.E.2d 386, 388 (2003) (6.6 grams), and that “distribution”
        does not require remuneration, see, e.g., Hadden v. State, 181 Ga.
        App. 628, 628–629, 353 S.E.2d 532, 533–534 (1987).
        Id. at 1686. Accordingly, “Moncrieffe’s conviction could correspond to
either the CSA felony or the CSA misdemeanor. Ambiguity on this point
means that the conviction did not ‘necessarily’ involve facts that correspond to

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                                    No. 13-40924


an offense punishable as a felony,” and thus, “under the categorical approach,
then, Moncrieffe was not convicted of an aggravated felony.” Id. at 1686-87.
In conclusion, the Court then warned that courts should be wary of the
Government’s attempts to classify a low-level drug offense as “illicit trafficking
in a controlled substance” and thus an “aggravated felony,” reasoning that to
classify “[s]haring a small amount of marijuana for no remuneration, let alone
possession with intent to do so,” as a trafficking offense “defies ‘the
commonsense      conception’   of    th[at]    term[]”   because   “the   everyday
understanding of ‘trafficking’ . . . ordinarily means some sort of commercial
dealing.” Id. at 1693 (some internal quotation marks and ellipses omitted).
Thus, under the categorical approach and the teachings of Moncrieffe, it would
be error to conclude that Martinez-Lugo’s conviction under Ga. Code Ann. § 16-
13-30(j)(1), which criminalizes conduct such as the social sharing or giving
away of small amounts of marijuana for no remuneration, is necessarily and
categorically a drug trafficking offense.
                                          B.
      There is an ironic and illogical inconsistency in the ramifications
produced by the majority’s decision today.           Under U.S.S.G. § 2L1.2(b),
defendants convicted of illegal reentry into the United States are exposed to
greater sentences if they reentered the country after having been convicted of
prior crimes. The section operates on a graduated scale: the more serious the
prior conviction, the greater the increased sentencing exposure. After the
majority’s decision, that structure comes crumbling down. For the reasons that
will be explained below, Moncrieffe dictates that Martinez-Lugo’s prior Georgia
conviction is not serious enough to qualify for the relatively minor eight-level
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                                No. 13-40924


enhancement under U.S.S.G. § 2L1.2(b)(1)(C).       And yet, according to the
majority of this panel, Martinez-Lugo’s prior Georgia conviction is serious
enough to invoke the sixteen-level enhancement under § 2L1.2(b)(1)(A)(i), the
highest enhancement available under this provision.
      Under U.S.S.G. § 2L1.2(b)(1)(C), a defendant previously deported after
conviction of an “aggravated felony” receives an eight-level offense
enhancement. The Sentencing Commission defines an aggravated felony for
purposes of § 2L1.2(b)(1)(C) as the “meaning given that term in 8 U.S.C. §
1101(a)(43)”—the INA provision that the Supreme Court analyzed in
Moncrieffe. See U.S.S.G. § 2L1.2, Application Note (3)(A) (emphasis added);
Moncrieffe, 133 S. Ct. at 1683 (analyzing 8 U.S.C. § 1101(a)(43) to determine
whether Moncrieffe was previously convicted of an “aggravated felony” under
the INA). Thus, Martinez-Lugo’s prior conviction under the identical Georgia
statute cannot trigger an eight-level offense enhancement under U.S.S.G.
§ 2L1.2(b)(1)(C) for a prior aggravated felony conviction—Moncrieffe held that
this Georgia statute is not an “aggravated felony” as defined in 8 U.S.C.
§ 1101(a)(43). It defies logic, then, to conclude that although Martinez-Lugo’s
prior Georgia conviction could not amount categorically to an aggravated
felony—and thus cannot trigger an eight-level enhancement under U.S.S.G.
§ 2L1.2—that his prior conviction, possibly for sharing a small amount of
marijuana gratuitously, nonetheless categorically constitutes a “drug
trafficking offense” worthy of a sixteen-level offense enhancement under
U.S.S.G. § 2L1.2.
      The majority attempts to justify the anomaly of imposing such a harsh
sentencing enhancement on individuals convicted under a statute that
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                                No. 13-40924


penalizes gratuitous sharing of small amounts of marijuana by noting that the
ultimate legal question presented in this case—whether an enhancement
under U.S.S.G. was properly imposed—is different from the question at issue
in Moncrieffe—whether the immigration courts properly found that the
petitioner was previously convicted of an “aggravated felony” under the INA,
and that the Sentencing Commission is free to treat convictions of “drug
trafficking offenses” more harshly than “aggravated felony” convictions,
regardless of whether “that determination is the best policy decision or not.”
Maj. Op., at 11. However, upholding a sixteen-level offense enhancement for
a prior conviction under a statute that the Supreme Court has explained may
be violated by mere social sharing of small amounts of marijuana for no
remuneration flouts the very purpose of this U.S.S.G. provision. As this court
has explained, “[t]he purpose of the sixteen-level enhancement is to ensure
that a defendant who reenters the United States illegally after having
committed a serious crime is punished more severely than a defendant who
reenters the country illegally without having committed a serious crime.”
United States v. Bustillos-Pena, 612 F.3d 863, 867 (5th Cir. 2010) (emphasis
added). The Court in Moncrieffe makes it clear that Martinez-Lugo’s prior
Georgia conviction penalizes conduct that may amount to no more than social
sharing of a small amount of marijuana for no remuneration—a crime
punishable as a misdemeanor under federal law, and thus not “serious” enough
to warrant even an eight-level offense enhancement as an aggravated felony.
The majority nonetheless condones the sixteen-level enhancement here, which
is imposed upon defendants who have been deported after being convicted of
very serious crimes, including, inter alia, human trafficking offenses and
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                                 No. 13-40924


national security or terrorism offenses, see U.S.S.G. § 2L1.2 (b)(1)(A), and is
double that which is imposed upon defendants with prior “aggravated felony”
convictions. See U.S.S.G. § 2L1.2 (b)(1)(A)-(C).
      By requiring sentencing courts to treat non-commercial social users of
marijuana like serious drug traffickers, the majority’s decision creates an
untenable inconsistency that is irreconcilable with Moncrieffe.
                                        II.
      The majority might have avoided its error had it properly and fully
applied the categorical approach required by circuit precedents and elaborated
upon in Moncrieffe.
      The Application Notes corresponding to U.S.S.G. § 2L1.2 provide a list of
enumerated offenses that qualify as “drug trafficking” offenses for purposes of
§ 2L1.2(b)(1)(A), including the possession with intent to distribute a controlled
substance.   The majority correctly acknowledges that the mere “fact that
Martinez-Lugo’s Georgia conviction has the same label—‘possession with
intent to distribute’—as an enumerated offense listed in the Guidelines
definition of ‘drug trafficking offense’ does not automatically warrant
application of the enhancement.” Maj. Op., at 6. Our precedents plainly
instruct that rather than allowing state-law labels to control, “[w]e employ a
categorical approach to determine whether a prior conviction qualifies as a
drug trafficking offense under § 2L1.2.” United States v. Henao-Melo, 591 F.3d
798, 802 (5th Cir. 2009); see also United States v. Teran-Salas, 767 F.3d 453,




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                                       No. 13-40924


458 (5th Cir. 2014); United States v. Reyes-Mendoza, 665 F.3d 165, 168 (5th
Cir. 2011); United States v. Garza-Lopez, 410 F.3d 268, 273 (5th Cir. 2005). 1
                                               A.
       Under the Taylor-Shepard 2 categorical approach, “we look ‘not to the
facts of the particular prior case,’ but instead to whether ‘the state statute
defining the crime of conviction’ categorically fits within the ‘generic’ federal
definition of a corresponding [drug trafficking offense].” Moncrieffe, 133 S. Ct.
at 1684 (quoting Gonzales v. Duenas-Alvarez, 549 U.S. 183, 186 (2007)). To
determine the “generic” federal definition of a crime we must view the federal
offense “in the abstract, to see whether the state statute shares the nature of
the federal offense that serves as a point of comparison.” Moncrieffe, 133 S. Ct.


       1 Our sister circuits likewise apply the categorical approach to determine whether a
prior state law conviction constitutes a federal offense for purpose of sentencing enhancement
under the Guidelines. See, e.g., United States v. Torre-Jimenez, 771 F.3d 1163, 1165 (9th Cir.
2014) (“We apply the categorical and modified categorical approaches described in
Taylor, . . . to determine whether a defendant's prior conviction satisfies U.S.S.G. §
2L1.2(b)(1)(A).”); United States v. Peterson, 629 F.3d 432, 435 (4th Cir. 2011) (“Courts employ
a categorical approach in determining whether a prior conviction will lead to a sentence
enhancement under the Sentencing Guidelines.”); United States v. Palomino Garcia, 606 F.3d
1317, 1328 (11th Cir. 2010) (“Although Taylor and Shepard were ACCA cases, we have
employed their ‘categorical approach’ in determining whether a prior offense qualifies for an
enhancement under the Guidelines.”); United States v. Torres-Romero, 537 F.3d 1155, 1158
(10th Cir. 2008) (“When a defendant contests whether his prior conviction constitutes a drug
trafficking offense the sentencing court is generally required to follow the categorical
approach adopted in Taylor . . . and Shepard”); United States v. Montanez, 442 F.3d 485, 492
(6th Cir. 2006) (applying the categorical approach and reasoning that “[h]ow a state titles its
statutory provisions, however, is not determinative of what actual statute a defendant was
convicted under for federal sentencing purposes.”); United States v. Fernandez-Antonia, 278
F.3d 150, 161-62 (2d Cir. 2002) (“A sentencing court employs a ‘categorical approach’ in
determining whether a conviction under state law fits within the federal sentencing
guidelines and thus merits an offense level enhancement.”).
       2See Taylor v. United States, 495 U.S. 575, 598-99 (1990); Shepard v. United States,
544 U.S. 13, 24-26 (2005) (plurality opinion).
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                                        No. 13-40924


at 1684. We use a “plain-meaning approach when determining the ‘generic,
contemporary meaning’ of non-common-law offense categories enumerated in
federal sentencing enhancements.” United States v. Rodriguez, 711 F.3d 541,
552 (5th Cir. 2013) (en banc).
       “[A] state offense is a categorical match with a generic federal offense
only if a conviction of the state offense ‘necessarily’ involved . . . facts equating
to [the] generic [federal offense].”           Moncrieffe, 133 S. Ct. at 1684 (citing
Shepard v. United States, 544 U.S. 13, 24 (2005) (plurality opinion)). “Because
we examine what the state conviction necessarily involved, not the facts
underlying the case, we must presume that the conviction ‘rested upon
[nothing] more than the least of th[e] acts’ criminalized, and then determine
whether even those acts are encompassed by the generic federal offense.” Id.
(quoting Johnson v. United States, 559 U.S. 133, 137 (2010)); see also United
States v. Carrasco-Tercero, 745 F.3d 192, 198 (5th Cir. 2014) (quoting
Moncrieffe, 133 S. Ct. at 1685); Sarmientos v. Holder, 742 F.3d 624, 628 (5th
Cir. 2014). 3 As we have previously explained on review of a district court’s


       3 If the pertinent state statute at issue has disjunctive elements, a court applies a
modified categorical approach to ascertain which of the disjunctive elements formed the basis
of the conviction. United States v. Miranda-Ortegon, 670 F.3d 661, 663 (5th Cir. 2012). In
making this determination, a court may consider limited sources, 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.” Shepard v. United States, 544
U.S. 13, 16 (2005). If the statute cannot be narrowed, a court considers “whether the least
culpable act constituting a violation of that statute constitutes” a drug trafficking offense for
purposes of § 2L1.2(b)(1)(A)(i). United States v. Moreno-Florean, 542 F.3d 445, 449 (5th Cir.
2008) (internal quotation marks and citations omitted). If the modified categorical approach
does narrow the statute to a specific subsection, then the court engages in an inquiry as if
applying the basic categorical approach: it compares the elements of the narrowed statute to
the “generic crime” to determine whether it qualifies for enhancement, looking to the
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                                    No. 13-40924


sentencing enhancement pursuant to § 2L1.2(b)(1), the essential inquiry
involved requires us to determine “whether the least-culpable act that would
violate [the state criminal statute] would also qualify as ‘drug trafficking’ for
purposes of § 2L1.2.” Reyes-Mendoza, 665 F.3d at 167. “If [the state law
criminal statute] is broad enough to criminalize conduct that would not
constitute trafficking under § 2L1.2, then the sentence should not have been
enhanced.” Id.
      Accordingly, I cannot agree with the majority’s contention that
Moncrieffe supports the district court’s sentencing enhancement here merely
because the Court in Moncrieffe, at first, found that the Georgia state law’s
elements, without benefit of the state courts’ interpretation of them,
superficially appear to be consistent with the elements of a CSA offense. See
Maj. Op., at 8. Certainly, the Court in Moncrieffe found that “[t]here is no
question that it is a federal crime to ‘possess with intent to . . . distribute . . . a
controlled substance,’ 21 U.S.C. § 841(a)(1), one of which is marijuana,
§ 812(c).” Moncrieffe, 133 S. Ct. at 1685. However, that finding did not end
the Moncrieffe Court’s inquiry, nor may it end ours. Id. (“So far, the state and
federal provisions correspond. But this is not enough[.]”). The Moncrieffe
Court concluded only that the Georgia law corresponds to a crime penalized by
the CSA and says nothing to suggest that this finding alone signifies that the
Georgia crime is categorically a “drug trafficking” offense.              As we have



elements of the crime, not the underlying facts. See Descamps, 133 S. Ct. at 2283. As the
Court has explained, “the modified approach merely helps implement the categorical
approach when a defendant was convicted of violating a divisible statute.” Id. at 2285
(citations omitted).
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                                 No. 13-40924


explained, “[n]ot all felony drug offenses are drug trafficking offenses.” Henao-
Melo, 591 F.3d at 805. It is undisputed that the CSA also penalizes simple
possession of a controlled substance, see 21 U.S.C. § 844(a), which is excluded
from the Guideline’s definition of a “drug trafficking offense.” See U.S.S.G.
§ 2L1.2; see also Henao-Melo, 591 F.3d at 805 (citing United States v. Caicedo–
Cuero, 312 F.3d 697, 707 (5th Cir.2002) (“[The definition of ‘drug trafficking
offense’ in § 2L1.2] clearly excludes simple possession of a controlled
substance.”)). Indeed, ending the inquiry prematurely, after only a superficial
comparison of the offenses’ elements alone, ignores both this court’s and the
Supreme Court’s instructions that we must analyze Georgia state law to
determine how the state courts interpret their own statute and whether the
state-law offense criminalizes conduct broader than the generic federal offense.
See Moncrieffe, 133 S. Ct. at 1684; see also Reyes-Mendoza, 665 F.3d at 169
(analyzing California courts’ interpretation of the term “manufacture” to
determine    whether    the   defendant’s     prior   California   conviction   for
manufacturing a controlled substance in violation of Section 11379.6 of the
California Health and Safety Code is categorically a drug trafficking offense
under U.S.S.G. § 2L1.2).
                                         B.
      Applying the Taylor-Shepard categorical approach to this case, we
should conclude that the Georgia statute under which Martinez-Lugo was
convicted criminalizes conduct that does not categorically amount to “drug
trafficking” and that his sentence, improperly enhanced under U.S.S.G.
§ 2L1.2(b) by sixteen offense levels for conviction of a prior drug trafficking
offense, should therefore be vacated.
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                                 No. 13-40924


      Preliminarily, because the Georgia statute at issue is a divisible one, the
district court properly consulted the charging documents and the final
judgment to determine which subsection of the Georgia statute Martinez-Lugo
was convicted under, and concluded he was convicted of possession with intent
to distribute marijuana. From there, we apply the categorical approach and
determine whether, “assum[ing] the defendant committed the least culpable
act to satisfy the conviction,” the elements of the Georgia conviction for
possession with intent to distribute marijuana are necessarily encompassed
within the definition of a “drug trafficking offense” under § 2L1.2.          See
Carrasco-Tercero, 745 F.3d at 198 (quoting Moncrieffe, 133 S. Ct. at 1685).
      In other words, we must compare the “least-culpable act” that would
constitute possession with intent to distribute under Ga. Code Ann. § 16-13-
30(j)(1) and determine whether such conduct “would also qualify as ‘drug
trafficking’ for purposes of § 2L1.2.”     Reyes-Mendoza, 665 F.3d at 167.
Moncrieffe makes clear that Martinez-Lugo’s prior conviction—possession with
intent to distribute under Ga. Code Ann. § 16-13-30(j)(1)—penalizes the
possession of small amounts of marijuana with the intent to distribute or give
away marijuana for no remuneration. See Moncrieffe, 133 S. Ct. 1686 (“[W]e
know that Georgia prosecutes this offense when a defendant possesses only a
small amount of marijuana, see, e.g., Taylor v. State, 260 Ga.App. 890, 581
S.E.2d 386, 388 (2003) (6.6 grams), and that ‘distribution’ does not require
remuneration, see, e.g., Hadden v. State, 181 Ga.App. 628, 628–629, 353 S.E.2d
532, 533–534 (1987).”).     Thus, Moncrieffe dictates the first step of our
categorical analysis here because the Court found that defendants in Georgia
may be convicted of possession with intent to distribute marijuana under Ga.
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                                  No. 13-40924


Code Ann. § 16-13-30(j)(1) for the giving away or social sharing of marijuana
for no remuneration—the “least culpable act” punishable under this provision.
Id.
        Next, we must determine whether “even th[e]se acts are encompassed by
the generic federal offense.” Moncrieffe, 133 S. Ct. at 1684 (quoting Johnson,
559 U.S. at 137). In defining the generic federal offense, we use a “plain-
meaning approach.” See Rodriguez, 711 F.3d at 552. Moncrieffe instructs that
the plain-meaning or “everyday understanding of ‘trafficking,’ . . . means some
sort of commercial dealing.” Moncrieffe, 133 S. Ct. at 1693. It follows that the
plain meaning of the generic federal drug trafficking offense of possession with
intent to distribute a controlled substance involves possession with the intent
to distribute for remuneration or with the intent to engage in some form of
commercial dealing. Martinez-Lugo’s conviction under Ga. Code Ann. § 16-13-
30(j)(1), which criminalizes conduct that does not necessarily amount to the
distribution of marijuana for remuneration, is therefore broader than the
generic, contemporary meaning of a drug trafficking offense of possession with
intent to distribute and therefore cannot support the sixteen-level sentence
enhancement under § 2L1.2(b)(1)(A)(i).
        Despite the majority’s position to the contrary, the Court has repeatedly
advised that we must consider the “everyday understanding” of the term
“trafficking” when determining whether a state law is a categorical match with
an enumerated “trafficking” offense, and that we should be wary of the
Government’s arguments that low-level drug offenses, such as sharing small
amounts of marijuana for no remuneration, are “aggravated felonies” or
“trafficking” offenses. See Moncrieffe, 133 S. Ct. at 1693 (reasoning that the
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                                 No. 13-40924


Government’s attempt to classify low-level drug offenses as “illicit trafficking”
offenses and thus “aggravated felonies” is an approach that “defies the
commonsense conception of these terms”) (quoting Carachuri-Rosendo v.
Holder, 560 U.S. 563, 574 (2010) (quoting Lopez v. Gonzales, 549 U.S. 47, 56,
(2006))) (internal quotation marks omitted).      Rather than ignore the term
“trafficking” when we analyze whether the Georgia statute here is a drug
trafficking offense, “[t]he everyday understanding of ‘trafficking’ should count
for a lot here . . . [a]nd ordinarily ‘trafficking’ means some sort of commercial
dealing.” Lopez, 549 U.S. at 43; see also Carachuri-Rosendo, 560 U.S. at 573.
To decline to consider the meaning of the term “trafficking” in determining the
commonsense, generic meaning of the drug trafficking offense of possession
with intent to distribute marijuana would ignore the “the cardinal rule that
statutory language must be read in context.” Lopez, 549 U.S. at 56; see also
Jones v. United States, 527 U.S. 373, 389 (1999) (“Statutory language must be
read in context and a phrase ‘gathers meaning from the words around it.’”)
(internal citation omitted).   Here, the majority stops short of reading the
relevant Guideline provision as a whole and thus fails to acknowledge the
ordinary, everyday meaning of the drug trafficking offense of possession with
intent to distribute as requiring some sort of commercial dealing, which is
conveyed by inclusion of the term “trafficking.” As the Court has explained,
“our interpretive regime reads whole sections of a statute together to fix on the
meaning of any one of them[.]” Id. The majority has not provided a satisfactory
reason that these same considerations and principles of statutory construction
do not apply to a U.S.S.G. case, like this case, where we are tasked with


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                                  No. 13-40924


determining whether a prior state-law offense is categorically a “drug
trafficking” offense.
                                      ***
      In sum, applying the categorical approach, as we must, I would conclude
that Martinez-Lugo’s prior Georgia conviction, which may have involved
nothing more than sharing a small amount of marijuana with no intention to
seek remuneration, was not a drug trafficking offense, and therefore did not
warrant the sixteen-level offense enhancement under U.S.S.G. § 2L1.2(b),
which ultimately led to his sentence of 46 months of imprisonment. In finding
to the contrary, the majority fails to fully and properly apply the categorical
approach, misreads and disregards the principles and holdings of Moncrieffe,
and condones an application of U.S.S.G. § 2L1.2 that is inconsistent with the
clear purpose of that provision. I therefore respectfully dissent.




                                       28
