     Case: 13-40924   Document: 00512866796    Page: 1   Date Filed: 12/11/2014




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT

                                                                United States Court of Appeals
                                                                         Fifth Circuit

                                No. 13-40924                           FILED
                                                                December 11, 2014
                                                                  Lyle W. Cayce
                                                                       Clerk
UNITED STATES OF AMERICA,

                                          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.
W. EUGENE DAVIS, Circuit Judge:
      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
months based upon Martinez’s 2002 Georgia conviction for possession with
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                                No. 13-40924


intent to distribute marijuana. For the reasons set out below, we VACATE the
sentence and REMAND.
                       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
that Martinez-Lugo had been convicted under GA. CODE ANN. § 16-13-30(j)(1)
(2002).
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      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). 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



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, — F. App’x —, No. 13-40943, 2014 WL 3930463 (5th Cir. 2014).
2 Perez-Melgarejo, 552 F. App’x at 328. Even under plain error review, we have vacated a

sentence enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(i) where the state statute clearly
exceeded the list of prohibited behavior set out in the Application Note to the Guideline. See
United States v. Garza-Lopez, 410 F.3d 268 (5th Cir. 2005) (vacating sentence where the
California statute at issue plainly included elements not listed in the then-current version of
the Application Note to § 2L1.2(b)(1)(A)(i)).
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.

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that the Georgia statute is overbroad because it also criminalizes possession
with intent to distribute for no remuneration. 6 On the other hand, the
Application Note to § 2L1.2(b)(1)(A)(i) seems to define 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

       Section 2L1.2(b)(1)(A)(i) itself does not define “drug trafficking offense,”
but the Application Note to § 2L1.2(b)(1)(A)(i) states:
             “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


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
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).

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                                       No. 13-40924


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

       We must determine whether the Georgia statute, which on its face seems
to fall directly within the Application Note to § 2L1.2(b)(1)(A)(i), is in fact a
“drug trafficking offense” subject to the 16-level enhancement.
           I. Categorical and Modified Categorical Approaches
       To determine whether a prior conviction qualifies as a drug trafficking
offense, this court employs the categorical approach set forth in Taylor v.
United States, 495 U.S. 575, 602 (1990), comparing the elements of the prior
offense—rather than the facts underlying the conviction—with the definition
of a “drug trafficking offense” under § 2L1.2(b)(1)(A). 10 “Where the record does
not make clear the offender’s offense and conviction, courts must ensure that
the least culpable act that violates the statute constitutes a drug-trafficking
offense. Accordingly, our inquiry centers on whether the least-culpable act that
would violate [the state statute] would also qualify as ‘drug trafficking’ for
purposes of § 2L1.2.” 11




8 U.S.S.G. § 2L1.2(b)(1)(A)(i), Application Note § 1(B)(iv) (emphasis added).
9 GA. CODE ANN. § 16-13-30(j)(1) (2002) (emphasis added).
10 United States v. Reyes-Mendoza, 665 F.3d 165, 166-67 (5th Cir. 2011).
11 Id.

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       If the statute at issue has disjunctive elements, this court may apply a
modified categorical approach to ascertain which of the disjunctive elements
formed the basis of the conviction. 12 In making this determination, this court
may consider “the statutory definition, charging document, written plea
agreement, transcript of plea colloquy, and any explicit factual finding by the
trial judge to which the defendant assented.” 13 If the statute cannot be
narrowed, this 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). 14
      Martinez-Lugo does not dispute that his prior conviction was a felony
under Georgia law, that he received criminal history points, or that the
sentence imposed exceeded 13 months. Additionally, the parties agree that the
Shepard documents only narrow down Martinez-Lugo’s prior conviction to a
conviction for possession of marijuana with intent to distribute under GA.
CODE ANN. § 16-13-30(j)(1). On its face, this would not seem to be a problem
because, as noted above, the Application Note to § 2L1.2(b)(1)(A)(i) explicitly
defines “drug trafficking offense” to include “possession of a controlled
substance . . . with intent to . . . distribute.” Thus, this appears at first blush
to be an easy case. It is not so.
      We must give great weight to the commentary to the Guidelines, such as
the Application Note at issue here, particularly where it interprets a Guideline.



12 United States v. Miranda-Ortegon, 670 F.3d 661, 663 (5th Cir. 2012).
13 Shepard v. United States, 544 U.S. 13, 16 (2005).
14 United States v. Moreno-Florean, 542 F.3d 445, 449 (5th Cir. 2008) (internal quotation

marks and citations omitted).
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Indeed, “[f]ailure to follow such commentary could constitute an incorrect
application of the guidelines, subjecting the sentence to possible reversal on
appeal.” 15 That deference is not limitless, however: “We have reason to avoid
giving effect to an interpretive or explanatory application note only if we
determine that the note ‘is inconsistent with, or a plainly erroneous reading of’
the Guideline.” 16 In essence, Martinez-Lugo argues that, following the
Supreme Court’s opinion in Moncrieffe, there is now an irreconcilable tension
between § 2L1.2(b)(1)(A)(i)’s simple requirement of a “drug trafficking offense”
and the Application Note’s inclusion of “possession with intent to distribute”
within the definition of that term.
                        II. Moncrieffe and “Trafficking”
       In Moncrieffe, the Supreme Court addressed whether a conviction for
possession with intent to distribute marijuana under the same Georgia statute
at issue here, GA. CODE ANN. § 16-13-30(j)(1), constituted an “aggravated
felony” under 8 U.S.C. § 1227(a)(2)(A)(iii) such that the defendant was
deportable and ineligible for discretionary relief under the Immigration and
Nationality Act (INA), 8 U.S.C. § 1101 et seq. 17 Specifically, the Court
considered the “aggravated felony” of “illicit trafficking in a controlled
substance” under 8 U.S.C. § 1101(a)(43)(B), which includes certain nested
statutory definitions:




15 U.S.S.G. § 1B1.7.
16 United States v. Pringler, — F.3d —, No. 12-10029, 2014 WL 4216052, at *6 (5th Cir. 2014)
(citing Stinson v. United States, 508 U.S. 36, 38, 113 S. Ct. 1913, 1915, 123 L. Ed. 2d 598
(1993)).
17 133 S. Ct. at 1682.

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                                          No. 13-40924


                    The INA defines “aggravated felony” to include a host
                    of offenses. § 1101(a)(43). Among them is “illicit
                    trafficking in a controlled substance.” § 1101(a)(43)(B).
                    This general term is not defined, but the INA states
                    that it “includ[es] a drug trafficking crime (as defined
                    in section 924(c) of title 18).” Ibid. In turn, 18 U.S.C. §
                    924(c)(2) defines “drug trafficking crime” to mean “any
                    felony punishable under the Controlled Substances
                    Act,” or two other statutes not relevant here. The chain
                    of definitions ends with § 3559(a)(5), which provides
                    that a “felony” is an offense for which the “maximum
                    term of imprisonment authorized” is “more than one
                    year.” The upshot is that a noncitizen’s conviction of
                    an offense that the Controlled Substances Act (CSA)
                    makes punishable by more than one year’s
                    imprisonment will be counted as an “aggravated
                    felony” for immigration purposes. A conviction under
                    either state or federal law may qualify, but 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.” Lopez
                    v. Gonzales, 549 U.S. 47, 60, 127 S.Ct. 625, 166
                    L.Ed.2d 462 (2006). 18

          Thus in Moncrieffe, the Supreme Court addressed whether the Georgia
statute constituted “illicit trafficking in a controlled substance,” but the
statutory scheme required application of the CSA, which treats as a
misdemeanor, under 21 U.S.C. § 841(b)(4), “distributing a small amount of
marihuana for no remuneration.” In Moncrieffe, the Supreme Court, applying
the categorical test, concluded that a conviction under GA. CODE ANN. § 16-13-
30(j)(1) for possession with intent to distribute marijuana does not necessarily



18   Id. at 1683.
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constitute an “aggravated felony” under the CSA because it also criminalizes
the possession of a small amount of marijuana or distribution for no
remuneration:
                A conviction under the same Georgia statute for
                “sell[ing]” marijuana, for example, would seem to
                establish remuneration. The presence of remuneration
                would mean that paragraph (4) is not implicated, and
                thus that the conviction is necessarily for conduct
                punishable as a felony under the CSA (under
                paragraph (1)(D)). In contrast, 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). So 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 an offense punishable as a felony under
                the CSA. Under the categorical approach, then,
                Moncrieffe was not convicted of an aggravated
                felony. 19

         Thus, the Court concluded, conviction under GA. CODE ANN. § 16-13-
30(j)(1) cannot qualify as the “aggravated felony” of “illicit trafficking in a
controlled substance” under the INA and therefore does not result in


19   Id. at 1686-87 (emphasis added).
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mandatory deportation. The Court went on to address the Government’s
arguments against the Court’s approach, but at the very end of the opinion the
Court paused to make a broader observation:
                This is the third time in seven years that we have
                considered whether the Government has properly
                characterized a low-level drug offense as “illicit
                trafficking in a controlled substance,” and thus an
                “aggravated felony.” Once again we hold that the
                Government’s approach defies “the ‘commonsense
                conception’” of these terms. Carachuri–Rosendo, 560
                U.S., at ––––, 130 S. Ct., at 2584–2585 (quoting Lopez,
                549 U.S., at 53, 127 S. Ct. 625). Sharing 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.’” Carachuri–Rosendo, 560 U.S., at ––––, 130
                S. Ct., at 2584–2585 (quoting Lopez, 549 U.S., at 53–
                54, 127 S. Ct. 625). Nor is it sensible that a state
                statute that criminalizes conduct that the CSA treats
                as a misdemeanor should be designated an
                “aggravated felony.” We hold that it may not be. If a
                noncitizen’s conviction for a marijuana distribution
                offense fails to establish that the offense involved
                either remuneration or more than a small amount of
                marijuana, the conviction is not for an aggravated
                felony under the INA. The contrary judgment of the
                Court of Appeals is reversed, and the case is remanded
                for further proceedings consistent with this opinion. 20




20   Id. at 1693-94 (emphasis added).
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                          III. Resolving the Tension
      In essence, Martinez-Lugo argues that we should apply the Supreme
Court’s   definition    of   “trafficking”   from     Moncrieffe    to    U.S.S.G.
§ 2L1.2(b)(1)(A)(i)’s sentence enhancement for a “drug trafficking offense” and
refuse to apply the enhancement in this case because, as the Supreme Court
noted in Moncrieffe, conviction under GA. CODE ANN. § 16-13-30(j)(1) does not
necessarily require remuneration. We agree.
      The holding of Moncrieffe does not control this case, but the Court’s
commonsense reading of the word “trafficking” is highly persuasive, especially
considering the context in which it was decided. Moncrieffe was decided under
the INA, which provides by statute a penalty for “illicit trafficking in a
controlled substance” and defines that term by referring to the CSA. The
Court’s analysis was explicitly based on the provisions of the CSA, and it could
have stopped at that level. Nevertheless, in the closing passage of the opinion
the Court offered a strong indication that it viewed “trafficking,” in its ordinary
sense, to require remuneration of some kind. Thus, the result it reached under
the CSA’s framework—refusing to find “illicit trafficking” where a defendant
might be convicted under the statute for possession with intent to distribute
small amounts of marijuana for no remuneration—was in harmony with the
“commonsense conception” of “trafficking.”
      In this case, the enhancement is established not under the INA and
statutes but under U.S.S.G. § 2L1.2(b)(1)(A)(i), which imposes a 16-level
enhancement for “drug trafficking offense for which the sentence imposed
exceeded 13 months.” The Guideline itself does not define “drug trafficking
offense” further, and no statute or other Guideline provides a controlling
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                                       No. 13-40924


definition of the term. The only purported definition is found in the Application
Note, which includes within the definition “possession of a controlled substance
. . . with intent to . . . distribute.”
       As illustrated by Moncrieffe, possession with intent to distribute under
the Georgia statute may also include distribution for no remuneration. Thus,
the Application Note included within the definition of “drug trafficking offense”
possession with intent to distribute for no remuneration. Therefore, the
Application Note’s purported definition of “trafficking” conflicts with “the
everyday understanding of ‘trafficking,’ which ordinarily . . . means some sort
of commercial dealing.” 21 As noted above, although we ordinarily apply the
commentary to a Guideline as written, the language of the Guideline itself
must control in the event of a conflict. 22 Accordingly, we hold that Martinez-
Lugo’s conviction under GA. CODE ANN. § 16-13-30(j)(1), which did not
necessarily require remuneration, cannot support the 16-level sentence
enhancement under § 2L1.2(b)(1)(A)(i) for a “drug trafficking offense,” which
according to the Supreme Court in Moncrieffe requires remuneration,
notwithstanding anything in the Application Note to the contrary.
                                     CONCLUSION
       For the reasons set out above, we conclude that the district court
misapplied U.S.S.G. § 2L1.2(b)(1)(A)(i). Martinez-Lugo’s 2002 Georgia
conviction for possession with intent to distribute marijuana cannot support


21Id. at 1693 (citation and some internal quotation marks omitted).
22Stinson, 508 U.S. at 43 (“It does not follow that commentary is binding in all instances. If,
for example, commentary and the guideline it interprets are inconsistent in that following
one will result in violating the dictates of the other, the Sentencing Reform Act itself
commands compliance with the guideline. See 18 U.S.C. §§ 3553(a)(4), (b).”).
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                                No. 13-40924


the 16-level sentence enhancement for a “drug trafficking offense.”
Accordingly, we VACATE the sentence and REMAND for further proceedings
consistent with this opinion.




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                                     No. 13-40924
GREGG COSTA, Circuit Judge, dissenting:
      At least sometimes, the easy answer is the correct one. Although the
“categorical” approach used in deciding whether prior state convictions qualify
as sentencing enhancements has often flummoxed the federal courts, its
application in this case leads to a straightforward result.          Martinez-Lugo
pleaded guilty to a Georgia indictment charging him with “unlawfully
possess[ing], with the intent to distribute, Marijuana.” That exact offense of
“possession . . . with intent to distribute” is enumerated in the Guidelines
definition of a “drug trafficking offense” that increases the offense level for
illegal reentry defendants. U.S.S.G. § 2L1.2, App. Note § 1(B)(iv).
      The only reason the majority departs from the obvious is Moncrieffe v.
Holder, 133 S. Ct. 1678 (2013). But Moncrieffe neither controls nor translates
to the issue before us. As the majority explains, the question in that deporation
case was whether a conviction under the Georgia Controlled Substances Act
“‘necessarily’ [involved] conduct punishable as a felony under the” federal
Controlled Substances Act. Id. at 1686. The Court held it did not because
“distributing a small amount of marihuana for no remuneration”—which could
have been the conduct that gave rise to the Georgia conviction in light of two
intermediate    appellate    decisions    upholding     convictions       in   those
circumstances—is a misdemeanor under federal law. Id. at 1686–87. That
comparison with federal drug law mattered in Moncrieffe because only a “drug
trafficking crime” that constitutes a felony under the Controlled Substances
Act qualifies as an “aggravated felony” under the Immigration and Nationality
Act (INA). Id. at 1683 (citing 8 U.S.C. § 1101(a)(43)(B), which incorporates the
definition of drug trafficking crime in 18 U.S.C. § 924(c)).
      Unlike the definition of “aggravated felony” in the INA, nothing in
section 2L1.2(b)(1)(A)(i) of the Guidelines calls for a comparison between a
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                                     No. 13-40924
state drug offense and the Controlled Substances Act. See Gastelum v. United
States, 2013 WL 3166200, at *3–4 (E.D. Cal. June 20, 2013) (stating that
Moncrieffe is not implicated when determining whether a prior state crime
qualifies as a “drug trafficking offense” under section 2L1.2 of the Guidelines).
What is more, a different enhancement in the same Guidelines section applies
to an “aggravated felony” as that term is used in the INA.              U.S.S.G.
§ 2L1.2(b)(1)(C) and app. Note 3(A). Reading the immigration law’s definition
of aggravated felony into a different section 2L1.2 enhancement for “drug
trafficking offense” thus runs counter to the principle 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.”            Sosa v.
Alvarez-Machain, 542 U.S. 692, 711 n.9 (2004).
      That leaves the following language from Moncrieffe’s final paragraph as
the only basis for finding that Martinez-Lugo’s Georgia conviction does not
qualify as a drug trafficking offense:
      This is the third time in seven years that we have considered
      whether the Government has properly characterized a low-level
      drug offense as “illicit trafficking in a controlled substance,” and
      thus an “aggravated felony.” Once again we hold that the
      Government’s approach defies “the ‘commonsense conception’” of
      these terms. Carachuri-Rosendo, 560 U.S., at ----, 130 S. Ct., at
      2584–2585 (quoting Lopez, 549 U.S., at 53, 127 S. Ct. 625).
      Sharing 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.’ ” Carachuri-Rosendo,
      560 U.S., at ----, 130 S. Ct., at 2584–2585 (quoting Lopez, 549 U.S.,
      at 53–54, 127 S. Ct. 625). Nor is it sensible that a state statute
      that criminalizes conduct that the CSA treats as a misdemeanor
      should be designated an “aggravated felony.”



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                                    No. 13-40924
Moncrieffe, 133 S. Ct. at 1693. Admittedly this is broad language, but I do not
read it as grafting an entirely new requirement on the section 2L1.2 “drug
trafficking offense” enhancement analysis—whether a state drug offense is
congruous with a federal felony drug offense—for at least two reasons.
      First, context matters and Moncrieffe as well as the two cases cited in
that passage are immigration ones in which the INA expressly required the
Court to determine whether a state drug conviction necessarily constituted a
felony under federal drug laws. See Carachuri-Rosendo v. Holder, 560 U.S.
563, 570 (2010) (“[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”).
      Second, Moncrieffe’s concern about serious consequences flowing from
low-level drug offenses in the immigration context is handled differently in the
Guidelines. In 2003, the Sentencing Commission addressed this very issue by
amending section 2L1.2 to use the length of the prior state sentence as a proxy
for its seriousness. See U.S.S.G. App. C, Vol. 2, amend. 632 (2013) (“This
amendment responds to concerns . . . that § 2L1.2 . . . sometimes results in
disproportionate penalties because of the 16-level enhancement . . . .”). The
Guideline uses a 16 point enhancement for a prior “drug trafficking” felony for
which the sentence imposed exceeded 13 months; a 12 point enhancement for
a prior “drug trafficking” felony for which the sentence imposed was 13 months
or less; and a 4 point enhancement for any other felony.        See U.S.S.G. §
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                                          No. 13-40924
2L1.2(b)(1)(A)–(D).      Classifying a state conviction as a “drug trafficking
offense” under section 2L1.2(b)(1) only when that state’s drug trafficking case
law categorically comports with the federal Controlled Substances Act disrupts
that attempt to calibrate the Guidelines to the seriousness of the prior drug
offense based on the length of the sentence. For example, under the majority’s
reasoning, a defendant who received a fifteen year sentence for a prior Georgia
possession with intent to distribute offense would receive only a four point
enhancement (as a felony, but not a “drug trafficking offense”). But a sixteen
point enhancement would apply to a defendant with a prior drug offense that
resulted in a fifteen month sentence so long as the state where that conviction
took place does not have a couple intermediate appellate court decisions
upholding convictions for distribution that did not involve remuneration.
       In addition to causing unjustified sentencing disparities, extending
Moncrieffe to govern section 2L1.2(b)(1)’s definition of “drug trafficking
offense” increases the complexity of applying this enhancement, which is
perhaps the most commonly litigated sentencing enhancement 1 and one that
is applied on an almost daily basis in the overburdened border courts where
this case arose. Application of the section 2L1.2(b)(1) enhancements for prior
drug offenses will now seemingly require two inquires. The first inquiry:
whether the state drug offense meets the definition of “drug trafficking offense”
in the Guidelines commentary. The second: whether the conduct giving rise to
the state offense would necessarily constitute a felony under the Controlled


1 According to the Federal Sentencing Commission, there were 13,887 applications of a
special offense characteristic adjustment under § 2L1.2 in FY 2013. U.S.S.C. Use of
Guidelines and Special Offense Characteristics 52 (2013). Over 2,000 of those applications
were for a “drug trafficking offense” under subsections (b)(1)(A)(i) and (ii). Id. To provide
further context, the relevant Guideline, § 2L1.2, represented 24.6% of all Guidelines
applications in FY 2013. Id.
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                                    No. 13-40924
Substances Act. One level of categorical analysis can be vexing enough, see,
e.g., Perez-Gonzalez v. Holder, 667 F.3d 622, 624 (5th Cir. 2012) (Jones, J.,
dissenting) (“part[ing] company” with the majority’s application of the
“modified categorical approach” because “the information filed against the
petitioner in the Montana court states exactly what crime [the defendant]
committed and that the likelihood that the Montana statute is employed
outside the categories of rape or child sexual abuse is minimal”); a second
further complicates this notoriously muddy area of the law. No other court of
appeals has yet required that courts undertake both these inquiries.
      Of course, given how consequential sentencing decisions are, courts
should not shy away from hard work and resolving difficult questions when the
law compels courts to do so and the result is a more sensible sentencing system.
Because neither is the case here, I would affirm the district court.




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