               REVISED JANUARY 30, 2008
       IN THE UNITED STATES COURT OF APPEALS
                FOR THE FIFTH CIRCUIT
                                                                  United States Court of Appeals
                                                                           Fifth Circuit

                                                                       FILED
                                                                    January 3, 2008
                                No. 06-41637
                                                                 Charles R. Fulbruge III
                                                                         Clerk
UNITED STATES OF AMERICA

                                          Plaintiff - Appellee
v.

JUAN ANTONIO LOPEZ-SALAS

                                          Defendant - Appellant



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


Before KING, BARKSDALE, and DENNIS, Circuit Judges.
PER CURIAM:
      Defendant-appellant Juan Antonio Lopez-Salas appeals his sentence. He
argues that it was improperly enhanced pursuant to section 2L1.2(b)(1)(A)(i) of
the United States Sentencing Guidelines because his prior North Carolina
conviction for transporting marijuana does not constitute a drug trafficking
offense. We VACATE his sentence and REMAND for re-sentencing.
                             I. BACKGROUND
      On May 9, 2006, Lopez-Salas, an alien and citizen of Mexico, was arrested
for being unlawfully present in the United States. Lopez-Salas was previously
deported on December 26, 1996, after being convicted in North Carolina state
                                     No. 06-41637

court and sentenced to seven years of imprisonment for conspiring to transport
marijuana under section 90-95(h) of the General Statutes of North Carolina. On
May 30, 2006, Lopez-Salas was charged with being found unlawfully present in
the United States after deportation and conviction of an aggravated felony in
violation of 8 U.S.C. §§ 1326(a) and 1326(b). He pleaded guilty on October 3,
2006, without the benefit of a plea agreement.
      A pre-sentencing investigation report was prepared by the United States
Probation Office, which recommended a sixteen-level enhancement on the
grounds that Lopez-Salas’s prior North Carolina conviction was a drug
trafficking offense under section 2L1.2(b)(1)(A)(i) of the United States
Sentencing Guidelines (the “Guidelines”).             Lopez-Salas objected to the
enhancement, arguing that the underlying North Carolina statue did not create
a drug trafficking offense because it punished mere possession without proof of
an intent to distribute. On November 8, 2006, the district court overruled Lopez-
Salas’s objection because the North Carolina indictment charged him with
conspiring “to commit the felony of trafficking by transporting 100 pounds or
more but less than 2000 pounds of marijuana.”               According to the court,
sustaining the objection would have required it to “ignore what . . . commonly
happens in our courts day in and day out,” that is, courts consider the “quantity
of a controlled substance as evidence sufficient to support a finding that the
person did so with the intent to distribute . . . .” The district court, therefore,
sentenced Lopez-Salas to forty-one months of imprisonment.
      On November 9, 2006, Lopez-Salas filed this timely appeal.1


      1
        Lopez-Salas challenges the constitutionality of treating 8 U.S.C. § 1326(b) as a
sentencing factor, as opposed to an independent element of the crime that must be proven.
This argument was rejected in Almendarez-Torres v. United States, 523 U.S. 224 (1998). He

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                                  II. DISCUSSION
A. Drug Trafficking Enhancements
      Under the Guidelines, the offense level for unlawfully entering the United
States is increased by sixteen levels if the defendant was previously deported
after being convicted of a drug trafficking offense that resulted in a sentence of
thirteen or more months of imprisonment. U.S.S.G. § 2L1.2(b)(1)(A)(i). A “drug
trafficking offense” is defined as “an offense under federal, state, or local law
that prohibits the manufacture, import, export, distribution, or dispensing of a
controlled substance (or a counterfeit substance) or the possession of a controlled
substance (or counterfeit substance) with intent to manufacture, import, export,
distribute, or dispense.” U.S.S.G. § 2L1.2, cmt. n.1(B)(iv) (emphasis added). We
review a district court’s conclusion that a prior state conviction constitutes a
drug trafficking offense de novo. United States v. Gutierrez-Ramirez, 405 F.3d
352, 355-56 (5th Cir. 2005).
      To determine whether a prior conviction is a predicate offense under the
Guidelines, we generally apply the “categorical approach” set forth in Shepard
v. United States, 544 U.S. 13 (2005), and Taylor v. United States, 495 U.S. 575
(1990). See United States v. Garza-Lopez, 410 F.3d 268, 273-74 (5th Cir. 2005);
Gutierrez-Ramirez, 405 F.3d at 356-57. We look to the statutory definition of the
underlying crime, rather than the facts supporting the conviction, and ask
whether that offense necessarily fits within the definition of the enhancement.
See Garza-Lopez, 410 F.3d at 273. “In a ‘narrow range of cases,’ however, . . .
[we] may look beyond the elements of the offense when making such a

contends that the Supreme Court would overrule Almendarez-Torres in light of Apprendi v.
New Jersey, 530 U.S. 466 (2000), but properly concedes that we have rejected this argument
and only appeals the issue to preserve it for further review.

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determination.” Id. (citation omitted). The determination of whether a prior
offense constitutes a drug trafficking offense under § 2L1.2(b)(1)(A)(i) falls into
that narrow range. Id. (citing United States v. Rodriguez-Duberney, 326 F.3d
613, 616-17 (5th Cir. 2003)). We are not, therefore, free to consider any and all
facts, but we “may consider the statutory definition of the predicate offense, the
charging paper, and the jury instructions.” Id. (citations omitted); Gutierrez-
Ramirez, 405 F.3d at 356-57 (stating that courts do not have carte blanche
authority to look beyond the indictment and jury instructions to determine
whether a prior conviction qualifies for a sentencing enhancement).
      In the instant case, Lopez-Salas’s sentence cannot be upheld based on the
statutory elements of his crime.      The underlying North Carolina statute
punishes anyone who “sells, manufacturers, delivers, transports, or possesses [a
certain quantity] of marijuana . . . .” N.C. GEN. STAT. § 90-95(h)(1) (1993). But
we have previously held that a drug trafficking enhancement could not be
supported by a conviction for transporting a controlled substance unless the
predicate statute included as an element an intent to manufacture, import,
export, distribute, or dispense. Garza-Lopez, 410 F.3d at 274-75. Nor is there
any extrinsic evidence that provides the requisite element of intent. The district
court relied on the indictment, which charged Lopez-Salas with conspiring “to
commit the felony of trafficking by transporting 100 pounds or more but less
than 2000 pounds of marijuana.” Yet the indictment merely tracks the statutory
language. A charging document that is no more specific than the statute of
conviction adds nothing to our analysis. Gutierrez-Ramirez, 405 F.3d at 359
(holding that the indictment did not justify the enhancement because it merely
recited the language of the overly broad statute).


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      Nevertheless, the Government argues that Lopez-Salas’s conviction
constitutes a drug trafficking offense because North Carolina presumes that
anyone convicted for transporting marijuana under N.C. GEN. STAT. § 90-95(h)
intends to distribute the drugs to others. The Government asserts that the
presumption can be inferred because the North Carolina statute requires the
transportation of large quantities of marijuana.         In further support, the
Government directs us to North Carolina case law stating that “[i]n creating this
offense, [North Carolina’s] legislature determined that certain amounts of
controlled substances indicate an intent to distribute on a large scale.” State v.
McCoy, 414 S.E.2d 392, 394 (N.C. Ct. App. 1992) (citation omitted); see also State
v. Carmon, 576 S.E.2d 730, 736 (N.C. Ct. App. 2003) (citation omitted) (stating
that a § 90-95 trafficking crime involves the large scale distribution of controlled
substances). In response, Lopez-Salas relies on unpublished cases from this
court holding that a conviction under N.C. GEN. STAT. § 90-95(h) does not
constitute a drug trafficking offense. See, e.g., United States v. Sanchez-Lopez,
182 F. App’x 355 (5th Cir. May 30, 2006); United States v. Meabe-Morales, 165
F. App’x 347 (5th Cir. Feb. 1, 2006). None of those cases addresses whether a
state’s presumption of intent can create a drug trafficking offense under the
Guidelines, however, which is both an issue of first impression in this court and
the subject of a circuit split.
B. The Circuit Split
      In United States v. Madera-Madera, 333 F.3d 1228, 1231-34 (11th Cir.
2003), the Eleventh Circuit held that a Georgia conviction for drug trafficking
constituted a drug trafficking offense because the statute presumes an intent to
distribute based on the amount of drugs involved. The court determined that a


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presumption exists by looking to the overall statutory scheme, which requires
proof of intent to distribute for possession of a small quantity of a controlled
substance but not for possession of a large quantity of controlled substance. Id.
at 1231-32. It deduced from this dichotomy that Georgia deems possession of a
large amount of drugs per se evidence of an intent to distribute. Id.
      The Eleventh Circuit next concluded that a state statute that presumes
an intent to distribute creates a drug trafficking offense, as defined in
§ 2L1.2(b)(1)(A), for three reasons. Id. at 1233-34. “First, the Sentencing
Commission clearly understands how to define an enhancement in terms of the
elements of the prior offense, but did not do so in § 2L1.2(b)(1)(A)(i).” Id. at
1233. In particular, while the definitions of other enhancements include the
phrase “that has an element,” § 2L1.2(b)(1)(A)(i) does not. Id. (citation omitted).
Second, if courts do not look beyond the elements of the Georgia statute, the
Guidelines would produce anomalous results. Id. at 1233-34. They would
permit enhancements for trafficking in small amounts of drugs while prohibiting
enhancements for trafficking in large amounts of drugs. Id. Third, these
anomalies would thwart the intent of the Guidelines, which were revised by the
Sentencing Commission in order to provide graduated sentencing enhancements
based on the seriousness of prior convictions. Id. at 1234 (citations omitted).
      On the other hand, one circuit court expressly rejects Madera-Madera, and
two other circuits reject the decision’s rationales. In United States v. Villa-Lara,
451 F.3d 963, 965 (9th Cir. 2006), the Ninth Circuit held that a Nevada
conviction for possession of a controlled substance is not a drug trafficking
offense under § 2L1.2(b)(1)(A) because the underlying state statute does not
include as an element the intent to manufacture, import, export, distribute, or


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dispense. The Ninth Circuit reasoned that the ordinary categorical approach
applies when determining whether a prior conviction is a drug trafficking offense
and, therefore, refused to look beyond the elements of the statute. Id. at 964-65
(citation omitted). It rejected Madera-Madera because the Eleventh Circuit
“failed to cite Taylor or [otherwise] undertake a proper Taylor categorical
analysis of only the statutory definition of the prior offense.” Id. at 965 n.2.
       Similarly, in United States v. Montanez, 442 F.3d 485, 493-94 (6th Cir.
2006), the Sixth Circuit refused to find a “controlled substance offense,” under
U.S.S.G. § 4B.1.2(b), based on an Ohio conviction for possession of a large
quantity of drugs.2 The Sixth Circuit accepted the Government’s contention that
the Ohio law is targeted at drug dealers, and that Ohio presumes that anyone
possessing large quantities of drugs intends to distribute them. Regardless, the
court held that while a “bulk theory” of intent may suit a state’s purposes, it does
not comport with the requirements of the Guidelines. Id. at 491 (citation
omitted). When determining whether a prior offense satisfies the Guidelines,
the “‘implications from the statutory structure[]’ can[not] trump the clear and
explicit elements of the offense.” Id. at 493 (citation omitted).
       Finally, in an opinion written by Judge McConnell that we find
particularly persuasive, the Tenth Circuit rejected the reasoning of Madera-
Madera. See United States v. Herrera-Roldan, 414 F.3d 1238, 1240-43 (10th Cir.
2005). In Herrera-Roldan, the Tenth Circuit refused to look beyond the elements
of the Texas statute to determine whether a prior conviction was a drug



       2
        Other than the requisite prison term, the definition of a controlled substance offense
under § 4B.1.2(b) is the same as the definition of a drug trafficking offense under
§ 2L1.2(b)(1)(A)(i).

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                                  No. 06-41637

trafficking offense under § 2L1.2(b)(1)(A). Id. at 1240-41. While it distinguished
the Texas statute from the Georgia statute reviewed by the Eleventh Circuit, id.
at 1242, the Tenth Circuit stated that the definition of a drug trafficking offense
“confines [its] inquiry to the terms of the statute of conviction just as much as
the phrase . . . ‘that has as an element[,]’” id. at 1241. Moreover, the court noted
that although its interpretation might produce anomalous results, incongruous
outcomes were “not strong enough to alter [its] straightforward reading of the
Guidelines.” Id. at 1244.
      We agree with the reasoning of the Sixth, Ninth, and Tenth Circuits and
hold that Lopez-Salas’s North Carolina conviction does not constitute a drug
trafficking offense. Sentencing enhancements are defined by federal, not state,
law. See Taylor, 495 U.S. at 590-91 (condemning the unfair results that would
occur if each state could create its own standard). While a bulk theory of intent
may suit a state’s purposes, “‘it does not comport with the requirement that, for
purposes of federal sentencing law, criminal intent to distribute must be proven
and not merely implied.’” Montanez, 442 F.3d at 492 (citation omitted). 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. See § 2L1.2, cmt. n.1(B)(iv).
      While we are sympathetic with the Eleventh Circuit’s concerns, we agree
with Judge McConnell’s cogent reasoning to the contrary. First, the absence of
the phrase “that has an element” from the definition of a drug trafficking offense
is not significant enough to depart from the ordinary standard of review. See
Herrera-Roldan, 414 F.3d at 1241-42.          This conclusion is buttressed by
comparison to Taylor, where the Supreme Court limited the scope of review of


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                                  No. 06-41637

prior offenses under the Career Criminals Amendment Act of 1986 (the “Act”)
to the terms of the statute because the Act “refers to ‘a person who . . . has three
previous convictions’ for—not a person who has committed—three previous
violent felonies or drug offenses.” 495 U.S. at 600 (omissions in the original).
Similarly, here, the sentencing enhancement applies to an illegal alien deported
after “a conviction for a felony that is [] a drug trafficking offense[,]” §
2L1.2(b)(1)(A)(i), not to an illegal alien who has committed a drug trafficking
offense.   Second, incongruous results do not justify a departure from the
ordinary standard of review. See Herrera-Roldan, 414 F.3d at 1244. Anomalies
occur when the evidence a court reviews is intentionally limited. But the
Guidelines cannot be “rewrit[ten] . . . simply because they might . . . produce an
anomalous result.” Id.
      We add that our conclusion in this case does not preclude the district court
from considering Lopez-Salas’s prior North Carolina conviction for sentencing
purposes on remand. “Before United States v. Booker, [543 U.S. 220, 259 (2005),]
sentencing courts were compelled to impose sentences that fell within the
sentencing ranges assigned by the Guidelines, unless a specified exception
existed. . . . Since Booker, sentencing courts have had a third sentencing
option—a non-Guidelines sentence.” United States v. Mejia-Huerta, 480 F.3d
713, 721 (5th Cir. 2007).
      Prior to imposing a non-Guidelines sentence, “the sentencing court must
calculate the correct Guidelines range, consider it as advisory, and use it as a
frame of reference.” Id.; see also Gall v. United States, 128 S. Ct. 586, 596 (2007)
(noting that “a district court should begin all sentencing proceedings by correctly
calculating the applicable Guidelines range”). If the sentencing court “decides


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that an outside-Guidelines sentence is warranted, [the court] must consider the
extent of the deviation and ensure that the justification is sufficiently compelling
to support the degree of the variance.” Gall, 128 S. Ct. at 597. “After settling
on the appropriate sentence, [the sentencing court] must adequately explain the
chosen sentence to allow for meaningful appellate review and to promote the
perception of fair sentencing.” Id.; see also United States v. Smith, 440 F.3d 704,
707 (5th Cir. 2006) (holding that district courts must provide fact-specific
reasons for imposing a non-Guidelines sentence and those reasons must be
consistent with the sentencing factors enumerated in 18 U.S.C. § 3553(a)).
      We have previously held that “[a] defendant’s criminal history is one of the
factors that a court may consider in imposing a non-Guideline[s] sentence.”
Smith, 440 F.3d at 709. Indeed, in United States v. Tzep-Mejia, 461 F.3d 522,
526-28 (5th Cir. 2006), we upheld an upward variance in a non-Guidelines
sentence for a past conviction without regard to whether the prior offense
“technically” qualified as a crime of violence under § 2L1.2(b)(1)(A)(ii).
                              III. CONCLUSION
      For the reasons stated above, we VACATE Lopez-Salas’s sentence and
REMAND for re-sentencing consistent with this opinion.




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