     Case: 15-40850      Document: 00513469046         Page: 1    Date Filed: 04/18/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 15-40850
                                  Summary Calendar
                                                                     United States Court of Appeals
                                                                              Fifth Circuit

                                                                            FILED
                                                                        April 18, 2016
UNITED STATES OF AMERICA,
                                                                       Lyle W. Cayce
                                                                            Clerk
              Plaintiff - Appellee

v.

ADOLFO ALEJANDRO RAUDA-CONSTANTINO,

              Defendant - Appellant




                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 7:15-CR-142-1


Before GRAVES, HIGGINSON, and COSTA, Circuit Judges.
STEPHEN A. HIGGINSON, Circuit Judge:*
       Adolfo Alejandro Rauda-Constantino pleaded guilty to being an alien
unlawfully found in the United States after a previous deportation.                              The
presentence report (PSR) established a base offense level of eight and applied
a sixteen-level offense enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(i) because
he was deported subsequent to a conviction for a drug trafficking offense for



       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                           No. 15-40850
which the sentence was greater than thirteen months.              It based the
enhancement on his 2002 Oklahoma conviction for “Trafficking in a Controlled
Dangerous Substance (Methamphetamine)” (Okla. Stat. tit. 63, § 2-415 (2000)).
Rauda-Constantino filed a written objection to the sixteen-level offense
enhancement and reiterated that objection at sentencing. He now challenges
that enhancement on appeal. He argues that the Oklahoma drug trafficking
statute covers conduct that does not qualify as a drug trafficking offense as
defined by U.S.S.G. § 2L1.2.      Rauda-Constantino relies on the charging
document from the Oklahoma case to establish that his offense involved only
mere possession of drugs and, thus, did not qualify as a trafficking offense. The
Government concedes this error.
      We review de novo a district court’s conclusion that a defendant’s prior
conviction constitutes a drug trafficking offense. United States v. Henao-Melo,
591 F.3d 798, 801 (5th Cir. 2009). We employ the categorical approach set
forth in Taylor v. United States, 495 U.S. 575, 602 (1990), to determine whether
a prior offense qualifies as a drug trafficking offense. United States v. Teran-
Salas, 767 F.3d 453, 458 (5th Cir. 2014). Where the statute of conviction is
divisible and one of the alternative elements is a categorical match to the
generic offense and another is not, the modified categorical approach applies.
Id. To determine which alternative element formed the basis of a defendant’s
conviction, the reviewing court may look only at the “charging document,
written plea agreement, transcript of plea colloquy, and any explicit factual
finding by the trial judge to which the defendant assented.” Id. (quoting
Shepard v. United States, 544 U.S. 13, 16 (2005)).
      The Oklahoma statute provides multiple, discrete ways in which a drug
trafficking offense may be committed, including possession without intent to
manufacture, import, export, distribute, or dispense, which does not qualify as
a trafficking offense under U.S.S.G. § 2L1.2. See Oklahoma Statute tit. 63, § 2-

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                             No. 15-40850
415(B); U.S.S.G. § 2L1.2, comment. (n.1(B)(iv)).          The parties have not
addressed whether these constitute different elements under Oklahoma law
that have to be unanimously found by a jury or just alternative means. See,
e.g., Almanza-Arenas v. Lynch, 815 F.3d 469, 469 (9th Cir. 2016) (discussing
the significance of the difference between means and elements). A case is
pending in the Supreme Court that presents the question of whether the
modified categorical approach applies to statutes with alternative means or
only those with alternative elements. See Mathis v. United States, 136 S. Ct.
894 (2016).    But even if the Oklahoma statute lists only means and the
Supreme Court holds that such statutes are divisible and subject to the
modified categorical approach, Rauda-Constantino is still able to show that his
state offense does not comport with the generic drug trafficking offense because
that approach would narrow his offense to one involving mere possession.
      Taken together, the Shepard documents show that Rauda-Constantino
was convicted specifically of possession of methamphetamine for purposes of
drug trafficking, to the exclusion of all other offenses enumerated in section 2-
415 of title 63 of the Oklahoma Statutes. The bill of information states that
Rauda-Constantino pleaded guilty to drug trafficking because he possessed no
less than twenty grams of methamphetamine. Rauda-Constantino answered
affirmatively when asked if he read and understood that charge, and if he
committed the acts set forth in the bill of information. Although the guilty plea
form states the basis for the plea was Rauda-Constantino’s sale of
methamphetamine, the deleted or erased signature weighs against a finding
that Rauda-Constantino assented to that fact and, thus, is not dispositive of
which alternative element formed the basis of his conviction. See Teran-Salas,
767 F.3d at 458. Given that this court has held expressly that mere possession
of drugs, even of a specific minimum quantity, is not encompassed by the
generic definition of a drug trafficking offense, see United States v. Sarabia-

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                              No. 15-40850
Martinez, 779 F.3d 274, 276–77 (5th Cir. 2015), both parties correctly argue
that the district court erred in applying the sixteen-level offense enhancement
under U.S.S.G. § 2L1.2(b)(1)(A)(i). As a result, we GRANT the Government’s
unopposed motion and therefore VACATE and REMAND this case to the
district court for resentencing.    We DENY the Government’s alternative
unopposed motion for an extension of thirty days to file its brief.




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