     Case: 13-51117   Document: 00512823529        Page: 1   Date Filed: 11/03/2014




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT


                                    No. 13-51117
                                                                  United States Court of Appeals
                                                                           Fifth Circuit

                                                                         FILED
UNITED STATES OF AMERICA,                                         November 3, 2014
                                                                    Lyle W. Cayce
             Plaintiff - Appellee                                        Clerk

v.

RODRIGO RODRIGUEZ-NEGRETE,

             Defendant - Appellant




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


Before STEWART, Chief Judge, and JONES and HIGGINSON, Circuit
Judges.
HIGGINSON, Circuit Judge:
      Rodrigo Rodriguez-Negrete (“Rodriguez”) appeals his sentence for illegal
reentry, contending that the district court erred in imposing a sentence
enhancement based on its classification of Rodriguez’s prior state crime as a
drug trafficking offense. We find that the documents we are permitted to
consult establish that Rodriguez necessarily was convicted of a drug trafficking
offense, as defined by the federal Sentencing Guidelines.
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                             FACTUAL BACKGROUND
      In March 2010, Rodriguez was indicted for “[t]rafficking [c]ocaine” by a
South Carolina Grand Jury under section 44-53-370(e)(2)(a)(1) of the South
Carolina Code. The indictment charged, inter alia, 1 that he
      unlawfully and knowingly did sell, manufacture, cultivate, deliver,
      purchase, or bring into this State; or did provide financial
      assistance or otherwise aid, abet, attempt, or conspire to sell,
      manufacture, cultivate, deliver, purchase, or bring into this State;
      or did possess or attempt to possess a controlled substance or a
      controlled substance analogue, to wit: Cocaine, in excess of ten
      grams . . . .
The affidavit of probable cause supporting this initial trafficking charge stated
that after Rodriguez was stopped for a traffic violation, officers found 13.8
grams of cocaine in his vehicle. Thereafter, however, Rodriguez pleaded guilty
to a “lesser included offense” pursuant to section 44-53-370(a), which makes it
unlawful, inter alia, for a person to “manufacture, distribute, dispense, deliver,
purchase . . . or possess with the intent to manufacture, distribute, dispense,
deliver, or purchase a controlled substance or a controlled substance analogue.”
S.C. Code Ann. § 44-53-370(a)(1). Rodriguez was sentenced to a prison term of
264 days. The sentencing sheet, signed by Rodriguez, his counsel, and the
judge,    indicated   that    Rodriguez    pleaded     guilty   to   “PWID/Dist.     of
Cocaine/LSD/other Narcotic drugs in Sch. I(b) & (c)/Sched. II, 1st offense.”
      In September 2012, Rodriguez was removed from the United States. In
July 2013, he was indicted for illegally reentering the United States after
removal in violation of 8 U.S.C. § 1326. He pleaded guilty to that offense. In
calculating Rodriguez’s Sentencing Guidelines range, the probation officer
noted that the Guidelines provide for a sentence enhancement if the defendant



      1  Rodriguez was also originally charged with possession with intent to distribute
cocaine in proximity to a school, but that charge was not prosecuted.

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previously committed a “drug trafficking offense.” See U.S. Sentencing
Guidelines Manual (“U.S.S.G.”) § 2L1.2(b)(1)(B) (2013). The officer applied that
enhancement, recommending that Rodriguez’s offense level be increased by
twelve levels, based on Rodriguez’s 2010 conviction in South Carolina.
       Rodriguez’s counsel submitted a written response to the presentence
report. Citing caselaw, he objected to the sentence enhancement because the
South Carolina statute under which Rodriguez pleaded guilty criminalizes the
“mere purchase or possession of a controlled substance.” Defense counsel
argued that neither the indictment nor the judgment indicated whether
Rodriguez pleaded guilty to a drug trafficking offense within the meaning of
the Sentencing Guidelines. He argued that because the “least culpable act”
that violates the statute of conviction does not constitute a drug trafficking
offense, Rodriguez was ineligible for the sentence enhancement.
       At the sentencing hearing, defense counsel repeated his objection to the
classification of Rodriguez’s state crime as a drug trafficking offense. Citing
the sentencing sheet’s reference to “PWID/Dist. of Cocaine/LSD/other Narcotic
drugs,” counsel stated, “you can’t read that one sentence under Shepard to be
the equivalent of a specific factual finding by the judge that that’s what he did
any more than you can read it to be a notation of the clerk who included the
first one or two lines of boilerplate from the statute.” 2 The sentencing judge
overruled the objection and relied on the twelve-level enhancement to apply a
Guidelines range of 30 to 37 months in prison. The judge sentenced Rodriguez
to a prison term of 30 months. Defense counsel objected to that sentence “in
order to preserve the issue.”


       2Rodriguez, in his sentencing allocation, remarked similarly: “I would like to request
the minimum, because of what they are saying, the reason I was accused in South Carolina
was for possession. I was not accused with possession with intent to distribute, and I was
never a trafficker.”

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                                  No. 13-51117

                                 DISCUSSION
      We review the district court’s interpretation and application of the
Sentencing Guidelines de novo. United States v. Medina-Torres, 703 F.3d 770,
773 (5th Cir. 2012). To determine whether a prior conviction qualifies as an
offense under the Sentencing Guidelines, we begin with the categorical
approach described in Taylor v. United States, 495 U.S. 575, 602 (1990). See
United States v. Stoker, 706 F.3d 643, 648 (5th Cir. 2013). Under that
approach, “[w]e examine the elements of the offense, rather than the facts
underlying the conviction or the defendant’s actual conduct, to determine
whether the enhancement applies.” United States v. Teran-Salas, 767 F.3d
453, 458 (5th Cir. 2014) (internal quotation marks and citation omitted). “[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 v. Holder, 133 S. Ct. 1678, 1684 (2013) (internal
quotation marks, alteration, and citation omitted). In determining whether a
state statute sweeps more broadly than an offense defined under federal law,
courts should not “conceive of every imaginable means by which a statute
might possibly be violated.” United States v. Gore, 636 F.3d 728, 733 (5th Cir.
2011). Rather, “to find that a state statute creates a crime outside the generic
definition of a listed crime in a federal statute requires . . . a realistic
probability, not a theoretical possibility, that the State would apply its statute
to conduct that falls outside the generic definition of a crime.” Gonzales v.
Duenas-Alvarez, 549 U.S. 183, 193 (2007). “To show that realistic probability,
an offender . . . must at least point to his own case or other cases in which the
state courts in fact did apply the statute in the special (nongeneric) manner for
which he argues.” Id.




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      If the state statute sweeps more broadly than the federal definition of
the offense, and the state statute is “divisible” in that it sets out offense
elements in the alternative, then we apply the “modified categorical approach”
to determine which offense element formed the basis of the defendant’s state
conviction. See Descamps v. United States, 133 S. Ct. 2276, 2281 (2013); Perez-
Gonzalez v. Holder, 667 F.3d 622, 625 (5th Cir. 2012). Under the modified
categorical approach, we may determine the defendant’s offense by consulting
a limited class of documents in addition to the statute of conviction. We may
consider the “‘charging document, written plea agreement, transcript of plea
colloquy, and any explicit factual finding by the trial judge to which the
defendant assented.’” Medina-Torres, 703 F.3d at 774 (quoting Shepard v.
United States, 544 U.S. 13, 16 (2005)). The Government bears the burden of
showing that, based on these documents, the offense of conviction necessarily
constituted a qualifying offense under the Sentencing Guidelines. See United
States v. Castaneda, 740 F.3d 169, 174 (5th Cir. 2013). Where these documents
do not identify the offense of conviction, we must consider whether the “least
culpable” means of violating the statute of conviction qualifies as an offense
under the Sentencing Guidelines. United States v. Elizondo-Hernandez, 755
F.3d 779, 781 (5th Cir. 2014) (internal quotation marks and citation omitted).
A sentence enhancement is properly applied only if the “least culpable” means
of violating the state statute makes the defendant eligible for the
enhancement. See United States v. Reyes-Mendoza, 665 F.3d 165, 167 (5th Cir.
2011).
      I.    Statute of Conviction
      To determine whether Rodriguez was convicted of a qualifying drug
trafficking offense in South Carolina, we begin by comparing the state statute
violated to the definition of a drug trafficking offense under the federal


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Sentencing Guidelines. The statutory provision under which Rodriguez
pleaded guilty, as entered on his sentencing sheet, is section 44-53-370(b)(1),
which, in fact, is the penalty provision for a person who violates section 44-53-
370(a) with respect to “a controlled substance classified in Schedule I (b) and
(c) which is a narcotic drug or lysergic acid diethylamide (LSD) and in Schedule
II which is a narcotic drug.” Section 44-53-370(a) provides generally:
      [I]t shall be unlawful for any person: (1) to manufacture,
      distribute, dispense, deliver, purchase, aid, abet, attempt, or
      conspire to manufacture, distribute, dispense, deliver, or purchase,
      or possess with the intent to manufacture, distribute, dispense,
      deliver, or purchase a controlled substance or a controlled
      substance analogue; (2) to create, distribute, dispense, deliver, or
      purchase, or aid, abet, attempt, or conspire to create, distribute,
      dispense, deliver, or purchase, or possess with intent to distribute,
      dispense, deliver, or purchase a counterfeit substance.
      Under the Sentencing Guidelines, a “drug trafficking offense” is, in
relevant part, “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 the possession of a controlled substance . . . with
intent to manufacture, import, export, distribute, or dispense.” U.S.S.G. §
2L1.2 cmt. 1(B)(iv). Section 44-53-370(a) criminalizes distribution and
possession with intent to distribute, both of which are drug trafficking offenses
under the plain language of U.S.S.G. § 2L1.2. See Teran-Salas, 767 F.3d at
460; see also State v. Andrews, 479 S.E.2d 808, 814 (S.C. Ct. App. 1996)
(making clear that to prove the crime of possession with intent to distribute
under section 44-53-370(a), the state is required to “prov[e] beyond a
reasonable doubt the element of intent to distribute”).
      However, the “purchase” of a controlled substance also violates section
44-53-370(a) but is not necessarily a drug trafficking offense within the
meaning of the Sentencing Guidelines. Both the plain language of the statute


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and caselaw indicate that section 44-53-370(a) prohibits the “purchase” of
cocaine. See S.C. Code Ann. § 44-53-370(a)(1) (“[I]t shall be unlawful for any
person . . . to . . . purchase . . . a controlled substance.”); see, e.g., State v. Watson,
No. 2013-UP-312, 2013 WL 8538756, at *1-2 (S.C. Ct. App. July 3, 2013)
(upholding a jury charge and verdict form “reflecting PWID [possession with
intent to distribute] heroin and purchasing heroin as two separate offenses”
under section 44-53-370(a)(1)). The purchase of a drug alone, however, does not
fall within the plain language of a “drug trafficking offense” under U.S.S.G. §
2L1.2. See United States v. Garza-Lopez, 410 F.3d 268, 274 (5th Cir. 2005)
(comparing the plain language of the state statute with the federal definition
of a “drug trafficking offense” to determine that the state statute was
overbroad). Notably, we have held that a state conviction for transporting
drugs did not constitute a drug trafficking offense because the state statute did
not include as an element an intent to manufacture, import, export, distribute,
or dispense the drugs. United States v. Lopez-Salas, 513 F.3d 174, 178 (5th Cir.
2008). Section 44-53-370(a) criminalizes, inter alia, the purchase of drugs
without any requirement that the offender intended to manufacture, import,
export, distribute, or dispense the drugs. S.C. Code Ann. § 44-53-370(a)(1); cf.
United States v. Shannon, 631 F.3d 1187, 1189 (11th Cir. 2011) (holding that
purchasing drugs did not constitute a “controlled substance offense” under
U.S.S.G. § 4B1.2(b), whose language is nearly identical to the definition of
“drug trafficking offense” in U.S.S.G. § 2L1.2); United States v. Henao-Melo,
591 F.3d 798, 803 n.7 (5th Cir. 2009) (“Given the similarities [between these
two definitions], we cite cases interpreting one or the other interchangeably.”).
      Because the statute of Rodriguez’s conviction criminalizes drug
distribution offenses as well as the mere purchase of drugs—the latter not




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necessarily a drug trafficking offense—the statute alone would not be sufficient
and determinative to support Rodriguez’s sentence.
      II.   Record of Conviction
      Under the modified categorical approach, we may determine the offense
of Rodriguez’s conviction by consulting a limited class of documents approved
by the Supreme Court in Shepard v. United States. The state record in this
case consists of three documents: (1) an indictment; (2) an affidavit of probable
cause; and (3) a sentencing sheet. The Government does not argue that we may
consult the affidavit under Shepard. See Perez-Gonzalez, 667 F.3d at 628
(excluding from consideration an affidavit by the Deputy County Attorney filed
in support of the charging document). We also may not rely on the indictment
to determine Rodriguez’s offense because he pleaded guilty to a lesser-included
offense of the charged offense. See United States v. Neri-Hernandes, 504 F.3d
587, 590 (5th Cir. 2007) (holding that the district court erred in using the
indictment to identify the defendant’s crime of conviction because he pleaded
guilty to a lesser-included offense of the charged offense).
      Rodriguez concedes on appeal that Shepard permits consideration of the
sentencing sheet to determine his crime of conviction. See United States v.
Bethea, 603 F.3d 254, 259 (4th Cir. 2010) (considering a South Carolina
sentencing sheet under the modified categorical approach). However, the
parties dispute whether the sentencing sheet makes clear that Rodriguez was
convicted of a drug trafficking offense under U.S.S.G. § 2L1.2. At the
sentencing hearing for Rodriguez’s federal crime, the district court sided with
the Government, finding that the sentencing sheet established that Rodriguez
pleaded guilty to possession with intent to distribute. We review that
conclusion de novo. See Lopez-Salas, 513 F.3d at 177, 180 (rejecting under de
novo review the district court’s inference from the indictment that the


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defendant intended to distribute the marijuana that he transported); United
States v. Bonilla, 524 F.3d 647, 652–53 (5th Cir. 2008) (rejecting under de novo
review the district court’s interpretation of the record as establishing that the
defendant’s prior state conviction was for a crime of violence, as defined by the
Sentencing Guidelines). The Government bears the burden of proving, based
on Shepard-approved documents, that Rodriguez was “necessarily” convicted
of a drug trafficking offense. See Henao-Melo, 591 F.3d at 805 (noting that
“Taylor demands certainty when determining whether a past guilty plea
‘necessarily admitted elements of the generic offense’” referenced in federal law
(quoting Shepard, 544 U.S. at 24, 26)).
      We find that the sentencing sheet makes clear that Rodriguez was
convicted of a drug trafficking offense. The sentencing sheet states that
Rodriguez pleaded guilty to “PWID/Dist. of Cocaine/LSD/other Narcotic drugs
in Sch. I(b) & (c)/Sched. II, 1st offense,” in violation of section 44-53-370(b)(1).
Of the various ways in which section 44-53-370(a) and its accompanying
penalty subsection, (b)(1), may be violated, the sentencing sheet, albeit in
abbreviated form, refers only to possession with intent to distribute and
distribution. These offenses are “drug trafficking offenses” under the plain
language of the Sentencing Guidelines, and Rodriguez does not argue
otherwise. See U.S.S.G. § 2L1.2 cmt. 1(B)(iv); cf. United States v. Herrera-
Escobedo, 440 F. App’x 365, 367–68 (5th Cir. 2011) (finding that a state court
judgment specifying that the defendant’s conviction was for “UNLAWFUL
DELIVERY PG 1–HEROIN” established that he had been convicted of a drug
trafficking offense).
      Rodriguez argues that the phrase “PWID/Dist.” is “shorthand” or a
statutory identifier that lacks the “specificity” necessary to identify the offense
of conviction. He draws attention to our decision in United States v. Gutierrez-


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Ramirez, 405 F.3d 352 (5th Cir. 2005), which cited favorably the Ninth
Circuit’s decision in United States v. Navidad-Marcos, 367 F.3d 903 (9th Cir.
2004). In Navidad-Marcos, the Ninth Circuit held that a California “abstract
of judgment” identifying the defendant’s offense as “Transport/sell cont. sub.”
simply recited the statute of conviction and did not necessarily establish that
the defendant was convicted of the transportation and sale of drugs. Id. at 908.
However, Navidad-Marcos relied on the unreliability of California abstracts of
judgment, and its holding has been called into doubt by subsequent Ninth
Circuit caselaw. See Kwong v. Holder, 671 F.3d 872, 879 (9th Cir. 2011).
Further, South Carolina sentencing sheets, the record shows, are signed by the
defendant, defense counsel, and the judge, and therefore are more reliable than
California abstracts of judgment, which are “a clerical, not a judicial function.”
Navidad-Marcos, 367 F.3d at 909. In addition, the abstract of judgment in
Navidad-Marcos alluded to transportation, which the Ninth Circuit found does
not necessarily constitute a drug trafficking offense. Id. at 908. By contrast,
Rodriguez’s sentencing sheet identifies only distribution conduct that
constitutes a drug trafficking offense. The sentencing sheet therefore makes
clear that Rodriguez pleaded guilty to a drug trafficking offense within the
meaning of the Sentencing Guidelines.


                                   CONCLUSION
      For the foregoing reasons, we AFFIRM Rodriguez’s sentence.




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