     Case: 14-50064   Document: 00512942526        Page: 1   Date Filed: 02/20/2015




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT


                                    No. 14-50064                  United States Court of Appeals
                                                                           Fifth Circuit

                                                                         FILED
UNITED STATES OF AMERICA,                                         February 20, 2015
                                                                    Lyle W. Cayce
             Plaintiff - Appellee                                        Clerk

v.

JOSE ANTONIO SARABIA-MARTINEZ,

             Defendant - Appellant




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



Before REAVLEY, JONES, and ELROD, Circuit Judges.
REAVLEY, Circuit Judge:
      Jose Antonio Sarabia-Martinez pleaded guilty to the federal offense of
illegally reentering the United States after having been removed. His sentence
was enhanced pursuant to guideline § 2L1.2 based on a previous “drug
trafficking offense” conviction.     The district court based the enhancement
solely on information in a pre-sentencing report (“PSR”). Sarabia-Martinez did
not object to the 16-level enhancement and was sentenced within the guideline
range to 50 months’ imprisonment and three years of supervised release.
      On appeal, Sarabia-Martinez argues the district court plainly erred by
treating his prior “Trafficking in Methamphetamine 14 Grams or More”
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                                 No. 14-50064
conviction as a “drug trafficking offense” for purposes of the sentencing
guidelines. We hold that conviction under the Florida drug trafficking statute
does not categorically constitute a drug trafficking conviction for purposes of
the sentencing guidelines. We further hold the district court plainly erred by
relying on the PSR in applying the sentence enhancement. Because the error
affected Sarabia-Martinez’s substantial rights, we vacate the sentence and
remand for resentencing.
      To classify a prior offense for purposes of applying a sentence
enhancement, courts must look to the elements of the statutory violation
rather than to the underlying facts of the prior conviction. United States v.
Garza-Lopez, 410 F.3d 268, 273 (5th Cir. 2005).           When applying this
“categorical approach,” if a statutory violation “encompasses activity that does
not fall within the definition of ‘drug trafficking offense’ under [guideline]
§ 2L1.2,” the conviction cannot be the basis of a “drug trafficking offense”
enhancement. Id. at 274.
      The government argues that Florida Stat. Ann. § 893.135(1)(f) (the
statute under which Sarabia-Martinez was previously convicted) encompasses
only activity that falls within the guidelines’ “drug trafficking offense”
definition, meaning a conviction under the statute necessarily means the
enhancement applies. The Florida statute reads in pertinent part:
      Any person who knowingly sells, purchases, manufactures,
      delivers, or brings into this state, or who is knowingly in actual or
      constructive possession of, 14 grams or more of amphetamine, as
      described [elsewhere in the code], or methamphetamine, as
      described [elsewhere in the code], or of any mixture containing
      amphetamine       or    methamphetamine,         or  phenylacetone,
      phenylacetic acid, pseudoephedrine, or ephedrine in conjunction
      with other chemicals and equipment utilized in the manufacture
      of amphetamine or methamphetamine, commits a felony of the
      first degree, which felony shall be known as “trafficking in
      amphetamine” . . . .

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                                  No. 14-50064
      The statute thus defines mere possession as a form of “trafficking”
provided the defendants possess a sufficient quantity. Cf. Greenwade v. State,
124 So.3d 215, 220 (Fla. 2013) (explaining that violation of the analogous
cocaine trafficking statute can be proven by possession alone provided “the
quantity of the substance met the statutory weight threshold”). The design
apparently manifests the Florida legislature’s judgment that intent to
distribute can be presumed based on possession of a large quantity of the
controlled substance.
      Under the sentencing guidelines:
      “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.
U.S.S.G. § 2L1.2, cmt. n.1(B)(iv).
      By classifying mere possession as drug trafficking, the Florida statute
defines drug trafficking more broadly than does the guidelines. Under the
categorical approach, application of the “drug trafficking offence” enhancement
would therefore be improper.         See Garza-Lopez, 410 F.3d at 274.          This
conclusion is foreordained by our precedents. We have already held that mere
transport of a controlled substance does not constitute § 2L1.2 drug trafficking.
See United States v. Lopez-Salas, 513 F.3d 174, 178–79 (5th Cir. 2008). We
cannot very well hold that mere possession does constitute § 2L1.2 drug
trafficking.
      The government tries to evade Lopez-Salas by arguing that Florida
presumes intent to distribute when a defendant possesses more than 14 grams
of amphetamine or related controlled substances. But this is the precise
argument we rejected in Lopez-Salas. See id. at 179–80 (holding that “a state’s
presumption of intent can[not] create a drug trafficking offense under the
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                                    No. 14-50064
Guidelines”). Further, the government’s reliance on a “series of decisions”
made by the 11th Circuit is misplaced because, as the government later
acknowledges, we have already rejected the 11th Circuit’s approach. 1 See id.
at 180–81. “Sentencing enhancements are defined by federal, not state, law,”
and a state’s “bulk theory of intent” cannot displace the guidelines’ text. Id. at
180. “The Guidelines could have defined a drug trafficking offense based on
the quantity of drugs possessed. Instead, they require that a state prove an
intent to manufacture, import, export, distribute, or dispense.” Id.
      The categorical approach cannot sustain application of the “drug
trafficking offense” enhancement in this case. See Descamps v. United States,
__ U.S. __, 133 S. Ct. 2276 (2013). Where a statute contains interchangeable
elements “compris[ing] multiple, alternative versions of the crime,” however,
it is said to be “divisible,” and sentencing courts may examine underlying facts
for the limited purpose of “determin[ing] which of a statute’s alternative
elements formed the basis of the defendant’s prior conviction.” Id. at 2284.
This inquiry “is limited to the terms of the charging document, the terms of a
plea agreement or transcript of colloquy between judge and defendant in which
the factual basis for the plea was confirmed by the defendant, or to some
comparable judicial record of this information.” Shepard v. United States, 544
U.S. 13, 26, 125 S. Ct. 1254, 1263, (2005). “[A] district court is not permitted to
rely on a PSR’s characterization of a defendant’s prior offense for enhancement
purposes.” Garza-Lopez, 410 F.3d at 274.
      Here, the district court looked beyond the statute and relied on facts
contained in the PSR to determine Sarabia-Martinez had been convicted of



      1  The government originally adopted this very position in an unopposed motion to
vacate Sarabia-Martinez’s sentence and remand for resentencing.       It later moved to
withdraw the motion. We GRANT the government’s second motion and decide the case on
the parties’ briefing.
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                                      No. 14-50064
drug distribution rather than mere possession. This is error. Id. at 275. The
government presses non-Shepard documents upon us and urges us to rely on
them in determining that the error did not work an injustice, meaning remand
would be improper. 2 The facts asserted in the “arrest report” now provided by
the government were never confirmed by Sarabia-Martinez. We decline to
draw any conclusions from documents the district court would not be permitted
to consider.     See Omari v. Gonzales, 419 F.3d 303, 308 (5th Cir. 2005)
(describing “police reports and complaint applications” as documents that may
not be considered).
       When a defendant fails to object to a guideline enhancement, we review
its application for plain error. See Garza-Lopez, 410 F.3d at 272. A sentencing
court’s improper reliance on facts included in a PSR represents plain error. Id.
at 275.     We must next determine whether the plain error affected the
defendant’s substantial rights and whether it “seriously affects the fairness,
integrity, or public reputation of judicial proceedings.” Garza-Lopez, 410 F.3d
at 272 (quoting United States v. Mares, 402 F.3d 511, 520 (5th Cir. 2005)).
“With respect to [these latter aspects] of the plain-error test, we must
determine ‘whether the defendant can show a reasonable probability that, but
for the district court’s misapplication of the Guidelines, [the defendant] would
have received a lesser sentence.’” Id. at 275 (quoting United States v. Villegas,
404 F.3d 355, 364 (5th Cir.2005)) (first alteration added, second alteration in
original). A “substantial disparity” between the sentence imposed and the
proper guidelines range shows that the defendant’s substantial rights were




       2 The government’s pending motion to supplement the record is GRANTED. Only the
arrest report provides purported facts relating to Sarabia-Martinez’s original arrest. Other
documents, including the “Charging Explanation” and “Information” sheet broadly indicate
the arrest was for “Trafficking in Amphetamine.”
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affected and that the error affected the fairness of the proceedings. United
States v. Gonzales-Terrazas, 529 F.3d 293, 298–99 (5th Cir. 2008).
      The fourth prong of plain error review is not satisfied simply because the
“plainly” erroneous sentencing guideline range yields a longer sentence than
the range that, on appeal, we perceive as correct. This court has twice stated
en banc: “We continue to adhere to our precedent declining ‘to adopt a blanket
rule that once prejudice is found under the [third plain error prong], the error
invariably requires correction.’” United States v. Escalante-Reyes, 689 F.3d
415, 425 (5th Cir. 2012) (en banc) (quoting United States v. Reyna, 358 F.3d
344, 352 (5th Cir. 2004 (en banc)). In this case, besides a notable sentencing
disparity, Sarabia-Martinez had no other significant convictions nor prior
reentry convictions. These additional facts justify our exercise of discretion
under the fourth prong to order resentencing. The sentence is VACATED and
case remanded for RESENTENCING.




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