            Case: 15-11312   Date Filed: 10/19/2015   Page: 1 of 9


                                                      [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 15-11312
                         Non-Argument Calendar
                       ________________________

               D.C. Docket No. 1:14-cr-00497-MHT-TFM-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                      versus

ANTONIO LANDAVERDE-CRUZ,

                                                          Defendant-Appellant.

                       ________________________

                Appeal from the United States District Court
                    for the Middle District of Alabama
                      ________________________

                             (October 19, 2015)

Before HULL, JULIE CARNES and FAY, Circuit Judges.

PER CURIAM:
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       After pleading guilty, Antonio Landaverde-Cruz (“Cruz”) appeals his 57-

month sentence for one count of illegal reentry after his 2005 deportation

following his 2003 conviction for an aggravated felony, in violation of 8 U.S.C.

§ 1326(a) and (b)(2). After review, we affirm.

              I. DRUG TRAFFICKING OFFENSE UNDER § 2L1.2

       On appeal, Cruz contends the district court erred when it increased his

offense level by 16 levels, pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(i), based on

Cruz’s 2003 Alabama conviction for trafficking in methamphetamine. 1 We first

review how Cruz’s guidelines range was calculated and then the relevant law about

the 16-level increase.

       At sentencing, the district court calculated a base offense level of 8, pursuant

to U.S.S.G. § 2L1.2(a). Over Cruz’s objection, the district court added 16 levels,

pursuant to § 2L1.2(b)(1)(A)(i), because Cruz was previously deported in 2005

after being convicted of felony methamphetamine trafficking in Alabama and

sentenced to 15 years in state prison. After a 3-level reduction for acceptance of

responsibility, pursuant to § 3E1.1(a) and (b), Cruz had a total offense level of 21.

Based on his multiple prior criminal convictions, Cruz was assigned a criminal

history category of IV, which yielded an advisory guidelines range of 57 to 71


       1
         This Court reviews de novo whether a defendant’s prior conviction qualifies as a “drug
trafficking offense” under U.S.S.G. § 2L1.2(b)(1)(A). United States v. Madera-Madera, 333
F.3d 1228, 1231 n.2 (11th Cir. 2003).
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months. Cruz asked for a downward variance to his time served of approximately

6 months, which the district court denied. The district court imposed a 57-month

sentence.

       Under § 2L1.2, an illegal reentry defendant receives a 16-level increase in

his offense level if he was previously deported after he was convicted of a “drug

trafficking offense for which the sentence imposed exceeded 13 months.”

U.S.S.G. § 2L1.2(b)(1)(A)(i). The commentary to § 2L1.2 defines a “drug

trafficking offense” as “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.” Id. § 2L1.2 cmt. n.1(B)(iv).

       The Alabama statute Cruz was convicted of violating provides, in relevant

part, that “[a]ny person who . . . is knowingly in actual or constructive possession

of, 28 grams or more of methamphetamine . . . is guilty of a felony, which felony

shall be known as ‘trafficking in methamphetamine.’” Ala. Code § 13A-12-

231(11)(a). Cruz argues that this offense is not a “drug trafficking offense” within

the meaning of § 2L1.2 because the Alabama statute does not have as an element

the intent to distribute.




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      Alabama’s scheme of drug possession crimes is a three-tiered classification

system based on the amount of drugs possessed, with the least serious offense

being simple possession, the next serious being possession with intent to distribute,

and the most serious being drug trafficking. See Ala. Code §§ 13A-5-3(b); 13A-

12-211; 13A-12-212; 13A-12-231. For methamphetamine offenses in Alabama,

simple possession is the knowing possession of any amount of a controlled

substance, which is a Class C felony with a mandatory minimum prison term of 1

year and 1 day. Ala. Code §§ 13A-12-212(a)(1), (b); 13A-5-6(a)(3). Possession

with intent to distribute is the knowing possession of between 9 grams and 27

grams of methamphetamine, which is a Class B felony with a mandatory minimum

2-year prison term. Ala. Code §§ 13A-12-11(c)(6), (d), 13A-5-6(a)(2). Finally,

trafficking in methamphetamine, the crime of which Cruz was convicted, is the

knowing possession of 28 grams or more of methamphetamine, which is a Class A

felony with a mandatory minimum three-year sentence if the quantity of

methamphetamine was between 28 grams and 499 grams. Ala. Code §§ 13A-12-

231(11)(a), (13).

      While this Court has not addressed the Alabama drug trafficking statute in

regards to U.S.S.G. § 2L1.2, we have addressed Georgia’s statute, which is nearly

identical. In United States v. Madera-Madera, 333 F.3d 1228 (11th Cir. 2003), this

Court addressed the same argument that Cruz now makes with respect to a Georgia


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conviction for trafficking in methamphetamine and § 2L1.2 of the Guidelines.

Like the Alabama statute here, Georgia’s statute defined the offense as the

“possession of 28 grams or more of methamphetamine.” See Madera-Madera, 333

F.3d at 1231; see also O.C.G.A. § 16-13-31(e). This Court explained that,

although the Georgia statute contained no explicit intent to distribute, under

Georgia’s three-tiered drug offense scheme, it was a more serious offense than

either simple possession or possession with intent to distribute, and thus the statute

“necessarily infers an intent to distribute once a defendant possesses a certain

amount of drugs.” Madera-Madera, 333 F.3d at 1231-32. 2 The Madera-Madera

court held that the Georgia methamphetamine conviction fell within § 2L1.2’s

definition of a “drug trafficking offense.” Id. at 1233.

       This Court subsequently concluded that Madera-Madera dictated that a

defendant’s Florida offense of trafficking in cocaine by possession of between 200

and 400 grams was a “serious drug offense” under the Armed Career Criminal Act,

924(e)(2)(A)(ii), because Florida’s three-tiered scheme was “not materially

distinguishable” from Georgia’s scheme. United States v. James, 430 F.3d 1150,

1155 (11th Cir. 2005). We explained that Florida’s drug trafficking statute, like



       2
         To the extent Cruz argues that the definition of “drug trafficking offense” in the
commentary to § 2L1.2 requires the “intent to distribute” to be an explicit statutory element of
the offense, Madera-Madera also rejected this argument, explaining that the Sentencing
Commission chose not to define a “drug trafficking offense” by its elements, but instead “by the
type of conduct prohibited by the state statute.” See Madera-Madera, 333 F.3d at 1233.
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Georgia’s, “necessarily infers an intent to distribute once a defendant possesses 28

grams or more.” Id.

       Accordingly, based on Madera-Madera, we too conclude here that

Alabama’s drug trafficking statute “necessarily infers an intent to distribute,” if at

least 28 grams of methamphetamine is possessed and, thus, a conviction under that

statute qualifies as a “drug trafficking offense” within the meaning of U.S.S.G.

§ 2L1.2. See Madera-Madera, 333 F.3d at 1232.

                              II. DUE PROCESS CLAIM

       Cruz argues that, at sentencing, the district court violated his right to due

process by considering the government’s unproven proffer that Cruz had an

outstanding arrest warrant in Florida for his alleged participation in a 2011

methamphetamine sale.

       To establish that a defendant’s due process rights have been violated by the

sentencing court, the defendant must show that: (1) the challenged evidence is

materially false or unreliable and (2) it actually served as the basis for the sentence.

United States v. Ghertler, 605 F.3d 1256, 1269 (11th Cir. 2010). The defendant

bears the burden of proving that the court explicitly relied on the information. Id. 3

       Here, Cruz cannot carry his burden to establish a due process violation

because the record does not show that the district court relied upon the

       3
        “We review de novo challenges to the constitutionality of a defendant’s sentence.”
Ghertler, 605 F.3d at 1268.
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government’s proffered, but unproven, information about an outstanding warrant.

Specifically, Cruz’s Presentence Investigation Report (“PSI”) stated that: (1) Cruz

had a pending charge in Florida for trafficking in amphetamine or

methamphetamine based on his delivering a bag of methamphetamine to a

confidential informant who was working with a drug task force in August 2011; (2)

a “capias” issued on October 2, 2012 for this pending charge; and (3) the probation

officer had confirmed that Cruz had the outstanding warrant with the sheriff’s

office in Florida.

      Cruz did not object to the pending charge information in the PSI before or at

the beginning of the first sentencing hearing, when the district court asked for

objections to the PSI. However, once the government referred to the outstanding

warrant in opposing Cruz’s request for a downward variance to time served, Cruz

objected to the information. Cruz pointed out that the arrest warrant did not issue

for over a year and was never served. Cruz further maintained that he was not “the

person who they believe committed this offense.”

      The district court expressed reluctance to vary downward to time served if

Cruz had engaged in the very serious conduct alleged in the outstanding warrant.

The district court continued the sentencing hearing so that the government could

obtain more evidence as to the outstanding warrant. When the sentencing hearing

resumed, the government advised the district court that it had contacted the clerk of


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the state court and the sheriff’s office and confirmed that a detainer was now

lodged against Cruz, that Cruz’s vehicle had been pulled over for a traffic violation

as part of an undercover drug investigation, but the arrest warrant was delayed so

that the larger investigation could be developed. The government, however, did

not present any evidence to support its contentions. Instead, Cruz submitted a copy

of the outstanding arrest warrant, but he continued to insist that he was not the

person identified in the warrant.

      On appeal, Cruz argues that, because he objected, the government had the

burden to prove the disputed information—that he was the person described in the

outstanding warrant who participated in the methamphetamine sale to the

confidential informant—but the government failed to do so. The problem for Cruz

is that, even assuming arguendo that the disputed information was materially false

and unreliable, the district court did not refer to it when it denied Cruz’s request for

a downward variance or when it imposed the 57-month sentence. Rather, the

district court explicitly stated that its reasons for denying the downward variance

included Cruz’s prior 15-year sentence for his 2003 methamphetamine trafficking

conviction, his high criminal history category (in which the outstanding warrant

had no bearing), and the seriousness of the charged reentry offense. Thus, on the

record before us, Cruz has not shown that the outstanding warrant or his alleged

participation in a 2011 methamphetamine sale to a confidential informant served as


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the basis for his sentence. See Ghertler, 605 F.3d at 1269. Accordingly, Cruz’s

has not established that the sentencing court violated his due process rights.

      For all these reasons, we affirm Cruz’s conviction and 57-month sentence.

      AFFIRMED.




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