                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                   March 7, 2007

                                                         Charles R. Fulbruge III
                                                                 Clerk
                           No. 05-41221



UNITED STATES OF AMERICA

                     Plaintiff - Appellee

     v.

JUAN GONZALES, also known as Jose Ventura-Ginez

                     Defendant - Appellant



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


Before KING, WIENER, and OWEN, Circuit Judges.

PER CURIAM:

                           I. BACKGROUND

     Defendant-appellant Juan Gonzales pleaded guilty to one

count of reentry of a removed alien in violation of 8 U.S.C.

§ 1326.   The presentence report (PSR) recommended that Gonzales’s

base offense level of eight be increased by sixteen levels for a

prior drug-trafficking conviction in accordance with section

2L1.2(b)(1)(A)(i) of the United States Sentencing Guidelines

(“U.S.S.G.” or “Guidelines”).   Gonzales’s prior conviction was

for unlawful delivery of a controlled substance in violation of

section 481.112 of the Texas Health and Safety Code.     The

district court adopted the PSR and, after making other
adjustments, arrived at a total offense level of 21 and a

criminal-history category of V, resulting in a Guidelines

sentencing range of 70 to 87 months’ imprisonment.     The court

imposed a sentence of 76 months’ imprisonment and 3 years’

supervised release.   Gonzales appeals his sentence.

                           II. DISCUSSION

     Gonzales argues that the district court erred by applying

the 16-level enhancement because a Texas conviction for delivery

of a controlled substance is not a drug-trafficking offense under

U.S.S.G. § 2L1.2(b)(1).   As Gonzales concedes, we review for

plain error since he did not properly preserve his argument

below.   See United States v. Garza-Lopez, 410 F.3d 268, 272 (5th

Cir.), cert. denied, 126 S. Ct. 298 (2005).

     Under plain-error review, we first inquire whether the

district court’s imposition of the enhancement was erroneous and,

if so, whether the error was plain (i.e., clear or obvious).       Id.

We review the district court’s interpretation and application of

the Guidelines de novo.   Id.

     Under the categorical approach of United States v. Taylor,

495 U.S. 575, 602 (1990), the court “looks to the elements of the

prior offense, rather than to the facts underlying the

conviction, when classifying a prior offense for sentence

enhancement purposes.”    Garza-Lopez, 410 F.3d at 273.   When

determining whether a prior offense is a drug-trafficking



                                 -2-
offense, the court may also consider documents such as the

charging instrument and the jury instructions.     Id.   The court

may not, however, rely solely on the description of the offense

contained in the PSR.   See id. at 274.

     The statutory definition of delivery of a controlled

substance in Texas, as defined by section 481.112 of the Texas

Health and Safety Code, encompasses activity that does not fall

within section 2L1.2’s definition of “drug trafficking offense.”

Section 481.112 criminalizes the knowing manufacture, delivery,

or possession with intent to deliver a controlled substance.         See

TEX. HEALTH & SAFETY CODE ANN. § 481.112(a) (Vernon 2003).   “Deliver”

is defined, in relevant part, as “to transfer, actually or

constructively, to another a controlled substance,” and it

“includes offering to sell a controlled substance.”      Id.

§ 481.002.   We have previously stated that offering to sell a

controlled substance lies outside section 2L1.2’s definition of

“drug trafficking offense,” since section 2L1.2 “covers only the

manufacture, import, export, distribution, or dispensing of a

controlled substance (or possession with the intent to do any of

these things).”1   Garza-Lopez, 410 F.3d at 274.    The district


     1
       The commentary to section 2L1.2 defines “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 the possession of a
controlled substance . . . with intent to manufacture, import,
export, distribute, or dispense. U.S.S.G. § 2L1.2 cmt.
n.1(B)(iv) (2004).

                                 -3-
court therefore could not have concluded that Gonzales was

convicted of a drug-trafficking offense by looking at the

language of section 481.002.   Cf. id. at 274-75 (concluding that

section 11379(a) of the California Health and Safety Code was

broader than section 2L1.2’s definition of “drug trafficking

offense” because section 11379(a) also criminalizes, inter alia,

offering to sell a controlled substance).

     With the court’s permission, the parties have supplemented

the record in this case with the indictment and the jury

instructions pertaining to Gonzales’s prior conviction.    But both

documents confirm that Gonzales’s conviction may have been for

activity that does not constitute a drug-trafficking offense,

i.e., offering to sell a controlled substance.   The state

indictment alleged that Gonzales “did unlawfully, knowingly and

intentionally deliver, to-wit: actually transfer, constructively

transfer, and offer to sell a controlled substance.”   And the

jury instructions state that Gonzales was accused of delivery of

a controlled substance and that the term “delivery” “includes

offering to sell a controlled substance.”

     The government obliquely argues that we can be assured

Gonzales has been convicted of actual delivery and constructive

delivery of a controlled substance since the indictment charged

actual delivery, constructive delivery, and offering to sell a

controlled substance in the conjunctive rather than in the

alternative.   We perceive the government’s argument to be that

                                -4-
because the indictment alleged that Gonzales “did . . . actually

transfer, constructively transfer, and offer to sell a controlled

substance,” 2d Supp. R. 4 (emphasis added), when the jury

convicted Gonzales it found that he had actually transferred,

constructively transferred, and offered to sell a controlled

substance; since the jury found that Gonzales both actually and

constructively transferred a controlled substance, he committed a

drug-trafficking offense.

     But as the government points out, “[a] disjunctive statute

may be pleaded conjunctively and proven disjunctively.”     United

States v. Still, 102 F.3d 118, 124 (5th Cir. 1996); see also Cano

v. Texas, 3 S.W.3d 99, 106 (Tex. App.——Corpus Christi 1999, pet.

ref’d) (“The State may plead all three forms of delivery in the

indictment.   Each of the theories may be submitted alternatively

in the jury charge.” (internal citation omitted)).   That is, even

though the indictment charged Gonzales with actually

transferring, constructively transferring, and offering to sell a

controlled substance, the jury could have convicted him based on

an offer to sell alone.   This is confirmed in the jury

instructions, which informed the jury that Gonzales was charged

with “actually transfer[ring], constructively transfer[ring], or

offer[ing] to sell a controlled substance.”   2d Supp. R. 7

(emphasis added).   Because the indictment and jury instructions

permitted the jury to convict Gonzales for behavior that does not

constitute a drug-trafficking offense (i.e., offering to sell a

                                -5-
controlled substance), it would be error to rely on these

documents to support the enhancement.

     Moreover, the government’s argument that the court should

look to the common, ordinary, and contemporary understanding of

“delivery of a controlled substance” is without merit.     We would

look to the generic, contemporary meaning of “drug trafficking

offense” if it were undefined, see United States v. Torres-Diaz,

438 F.3d 529, 536 (5th Cir.), cert. denied, 126 S. Ct. 1487

(2006), but “drug trafficking offense” is defined in the

commentary to section 2L1.2, see U.S.S.G. § 2L1.2 cmt.

n.1(B)(iv).   There is no basis for the court to look to a

generic, contemporary meaning of “delivery of a controlled

substance”; instead, the court looks to the elements of the

offense as enumerated in section 481.112(a).      See Torres-Diaz,

438 F.3d at 537.

     Accordingly, the district court erred when it concluded that

Gonzales’s prior conviction was for a drug-trafficking offense.

We also conclude that this error is plain since Garza-Lopez makes

it clear that offering to sell a controlled substance does not

constitute a drug-trafficking offense.      See 410 F.3d at 274.

     We turn then to the question whether the error affected

Gonzales’s substantial rights.   “[W]e must determine ‘whether the

defendant can show a reasonable probability that, but for the

district court’s misapplication of the Guidelines, [he] would

have received a lesser sentence.”      Id. at 275 (quoting United

                                 -6-
States v. Villegas, 404 F.3d 355, 364 (5th Cir. 2005) (per

curiam)).

     Gonzales has satisfied his burden on the third prong of

plain-error review.   Absent the erroneous 16-level enhancement

under section 2L1.2(b)(1)(A)(i), Gonzales would have been subject

at most to an 8-level enhancement under section 2L1.2(b)(1)(C)

for a prior aggravated-felony conviction (although Gonzales does

not concede that this enhancement would have been proper).   An

8-level enhancement would have resulted in a total offense level

of 13.   With a criminal-history category of V, this would yield a

Guidelines sentencing range of 30 to 37 months’ imprisonment,

which is significantly lower than the 76-month sentence that

Gonzales received.2

     Under the fourth prong of plain-error review, we may reverse

only if the error seriously affected the fairness, integrity, or

public reputation of judicial proceedings.   United States v.

Olano, 507 U.S. 725, 732 (1993).   We conclude that this prong is


     2
       United States v. Ochoa-Cruz, 442 F.3d 865 (5th Cir. 2006)
(per curiam) is distinguishable. In that case, we reviewed for
plain error a 16-level enhancement under section
2L1.2(b)(1)(A)(ii) for a prior crime-of-violence conviction. We
concluded that the district court plainly erred by relying solely
on the PSR’s description of the prior offense to support the
enhancement. Id. at 867. But we concluded that the defendant
had not demonstrated that the error affected his substantial
rights because he had failed even to argue, and thereby failed to
show, that the offenses for which he had previously been
convicted were not crimes of violence. Id. Gonzales has done so
here by demonstrating that section 481.112 encompasses activity
that does not constitute a drug-trafficking offense.

                                -7-
satisfied here, as we have in other cases where “the district

court’s error clearly affected [the] sentence.”   United States v.

Villegas, 404 F.3d 355, 365 (5th Cir. 2005) (per curiam); see

also Garza-Lopez, 410 F.3d at 275 (holding that erroneous

enhancement for prior drug-trafficking offense resulting in a

substantially different sentence affected the fairness of

judicial proceedings).3

                          III. CONCLUSION

     For the foregoing reasons, we conclude that the district

court committed plain error and that Gonzales’s sentence must be

vacated.

     SENTENCE VACATED; CASE REMANDED FOR RESENTENCING.




     3
       In order to preserve the argument for further review,
Gonzales also contends that his sentence should be limited to the
two-year statutory maximum in § 1326(a) rather than the 20-year
maximum in § 1326(b)(2). He asserts that § 1326(a) and
§ 1326(b)(2) create separate offenses and that the indictment did
not charge him with a § 1326(b)(2) offense because it did not
allege that he was removed subsequent to an aggravated-felony
conviction. But as he concedes, his argument is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224 (1998).

                                -8-
