                                                         United States Court of Appeals
                                                                  Fifth Circuit
                                                               F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                  March 7, 2007

                                                           Charles R. Fulbruge III
                                                                   Clerk
                             No. 05-50396



UNITED STATES OF AMERICA

                       Plaintiff - Appellee

     v.

RAIMUNDO GONZALEZ-MERCADO, also known as Santiago Romero, also
known as Cristobal Conchi-Martinez

                       Defendant - Appellant



          Appeal from the United States District Court
           for the Western District of Texas, El Paso
                        No. 3:04-CR-2319


Before KING, WIENER, and OWEN, Circuit Judges.

PER CURIAM:*

                             I. BACKGROUND

     Defendant-appellant Raimundo Gonzalez-Mercado pleaded guilty

to one count of reentry of a removed alien in violation of 8

U.S.C. § 1326.    At sentencing, the district court calculated

Gonzalez-Mercado’s total offense level by, inter alia, imposing a

16-level enhancement for a prior drug-trafficking conviction in

accordance with section 2L1.2(b)(1)(A)(i) of the United States



     *
       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this opinion should not be published and is not precedent except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.
Sentencing Guidelines (“U.S.S.G.” or “Guidelines”).   Gonzalez-

Mercado’s prior conviction was for the unlawful sale or

transportation of, or offer to sell, a controlled substance in

violation of section 11352(a) of the California Health and Safety

Code.   After making other adjustments, the district court arrived

at a total offense level of 21 and a criminal-history category of

IV, resulting in a Guidelines sentencing range of 57 to 71

months’ imprisonment.   But the court concluded that a criminal-

history category of IV overstated Gonzalez-Mercado’s propensity

to commit crime and that instead a criminal-history category of

II was more appropriate.   The total offense level of 21 and the

criminal-history category of II yielded a Guidelines range of 41

to 51 months’ imprisonment.   The court imposed a sentence of 41

months’ imprisonment and 3 years’ supervised release.   Gonzalez-

Mercado appeals his sentence.

                           II. DISCUSSION

     Gonzalez-Mercado argues that the district court erred by

applying the 16-level enhancement because a California conviction

for sale or transportation of, or offer to sell, a controlled

substance is not a drug-trafficking offense under U.S.S.G.

§ 2L1.2(b)(1).   As Gonzalez-Mercado concedes, we review for plain

error since he did not properly preserve his argument below.      See

United States v. Garza-Lopez, 410 F.3d 268, 272 (5th Cir.), cert.

denied, 126 S. Ct. 298 (2005).



                                 -2-
     Under plain-error review, we first inquire whether the

district court’s imposition of the enhancement was erroneous and,

if so, whether the error was plain (i.e., clear or obvious).     Id.

We review the district court’s interpretation and application of

the Guidelines de novo.   Id.

     Under the categorical approach of United States v. Taylor,

495 U.S. 575, 602 (1990), the court “looks to the elements of the

prior offense, rather than to the facts underlying the

conviction, when classifying a prior offense for sentence

enhancement purposes.”    Garza-Lopez, 410 F.3d at 273.   The

government concedes that the district court could not have relied

solely on the language of section 11352(a) to conclude that

Gonzalez-Mercado’s prior conviction was for a drug-trafficking

offense since section 11352(a) criminalizes certain activity1

(e.g., transportation of a controlled substance for personal use)

that does not constitute a drug-trafficking offense under section

2L1.2.   We agree.   See United States v. Gutierrez-Ramirez, 405

F.3d 352, 359 (5th Cir.), cert. denied, 126 S. Ct. 217 (2005)

(holding that 16-level enhancement for prior conviction under

section 11352(a) was error where government conceded statute

“could be violated by conduct that would not qualify as a ‘drug

     1
        Section 11352(a) makes it a crime to “transport[],
import[] into this state, sell[], furnish[], administer[], or
give[] away, or offer[] to transport, import into this state,
sell, furnish, administer, or give away, or attempt[] to import
into this state or transport” a controlled substance. CAL. HEALTH
& SAFETY CODE § 11352(a).

                                 -3-
trafficking offense’ under the Guidelines” and other evidence in

the record did not narrow the conviction to activity within the

definition of “drug trafficking offense”); see also Garza-Lopez,

410 F.3d at 274-75 (holding that a similar provision, section

11379(a) of the California Health and Safety Code, criminalizes

activity that is not a drug-trafficking offense).

       When determining whether a prior offense is a drug-

trafficking offense, the court may also consider documents such

as the charging instrument and the jury instructions.     Id. at

273.    With the court’s permission, the government has

supplemented the record in this case with certain documents

(e.g., the information) pertaining to Gonzalez-Mercado’s

California conviction.    But now the government also concedes that

these documents do not bring Gonzalez-Mercado’s prior conviction

within the definition of “drug trafficking offense” in section

2L1.2.

       Consequently, we conclude that the district court erred by

applying the 16-level enhancement for a prior drug-trafficking

conviction.    We also conclude that the error was plain since

Garza-Lopez makes it clear that the California offense

encompasses activities outside the definition of “drug

trafficking offense.”    See id. at 274.

       We turn then to the question whether the error affected

Gonzalez-Mercado’s substantial rights.     “[W]e must determine

‘whether the defendant can show a reasonable probability that,

                                 -4-
but for the district court’s misapplication of the Guidelines,

[he] would have received a lesser sentence.”     Id. at 275 (quoting

United States v. Villegas, 404 F.3d 355, 364 (5th Cir. 2005) (per

curiam)).

     Gonzalez-Mercado has satisfied his burden on the third prong

of plain-error review.   Absent the erroneous 16-level enhancement

under section 2L1.2(b)(1)(A)(i), Gonzalez-Mercado would have been

subject at most to an 8-level enhancement under section

2L1.2(b)(1)(C) for a prior aggravated-felony conviction (although

Gonzalez-Mercado does not concede that this enhancement would

have been proper).   An 8-level enhancement would have resulted in

a total offense level of 13.    With a criminal-history category of

IV, this would yield a Guidelines sentencing range of 24 to 30

months’ imprisonment, which is significantly lower than the 41-

month sentence that Gonzalez-Mercado received.    And with a

criminal history category of II, this would yield a Guidelines

sentencing range of 15 to 21 months’ imprisonment, even farther

below the sentence imposed.

     The government contends that Gonzalez-Mercado cannot

demonstrate that the outcome would have been different because

the district court already granted a significant downward

departure based on its determination that Gonzalez-Mercado’s

criminal-history category of IV overstated his propensity to

commit crime.   We disagree.   Even at a criminal history of

category IV, once the total offense level is adjusted to 13

                                 -5-
Gonzalez-Mercado’s Guidelines range is 24 to 30 months, which is

at least 11 months less than the sentence imposed.   There is

nothing in the record indicating that had the district court

correctly calculated the offense level, it would have upwardly

departed from the resulting sentencing range to achieve a 41-

month sentence.

     Under the fourth prong of plain-error review, we may reverse

only if the error seriously affected the fairness, integrity, or

public reputation of judicial proceedings.   United States v.

Olano, 507 U.S. 725, 732 (1993).   We conclude that this prong is

satisfied here, as we have in other cases where “the district

court’s error clearly affected [the] sentence.”   United States v.

Villegas, 404 F.3d 355, 365 (5th Cir. 2005) (per curiam); see

also Garza-Lopez, 410 F.3d at 275 (holding that erroneous

enhancement for prior drug-trafficking offense resulting in a

substantially different sentence affected the fairness of

judicial proceedings).2

                          III. CONCLUSION

     For the foregoing reasons, we conclude that the district

     2
       In order to preserve the argument for further review,
Gonzalez-Mercado also contends that his sentence should be
limited to the two-year statutory maximum in § 1326(a) rather
than the 20-year maximum in § 1326(b)(2). He asserts that
§ 1326(a) and § 1326(b)(2) create separate offenses and that the
indictment did not charge him with a § 1326(b)(2) offense because
it did not allege that he was removed subsequent to an
aggravated-felony conviction. But as he concedes, his argument
is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224
(1998).

                                -6-
court committed plain error and that Gonzalez-Mercado’s sentence

must be vacated.

     SENTENCE VACATED; CASE REMANDED FOR RESENTENCING.




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