     Case: 15-40470   Document: 00513541384        Page: 1   Date Filed: 06/09/2016




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                                   United States Court of Appeals
                                                                            Fifth Circuit
                                    No. 15-40470                          FILED
                                                                       June 9, 2016

UNITED STATES OF AMERICA,                                            Lyle W. Cayce
                                                                          Clerk
             Plaintiff - Appellee

v.

HUMBERTO MARTINEZ-VIDANA,

             Defendant - Appellant



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


Before STEWART, Chief Judge, and JONES and DENNIS, Circuit Judges.
EDITH H. JONES, Circuit Judge:
      Humberto Martinez-Vidana appeals his 50-month sentence for illegally
reentering the United States after deportation. He challenges the application
of a 16-level enhancement for a prior “drug trafficking offense” under
U.S.S.G. § 2L1.2(b)(1)(A)(i), which the court based on his prior conviction
under 18 U.S.C. § 2 and 21 U.S.C. § 843(b) for aiding and abetting the use of a
communication facility to facilitate a felony drug offense. Martinez-Vidana
argues that § 843(b) proscribes conduct that falls outside the generic definition
of a drug trafficking offense and that Descamps v. United States, 133 S. Ct.
2276 (2013), forecloses the modified categorical approach of Shepard v. United
States, 544 U.S. 13, 125 S. Ct. 1254 (2005), because the nature of the
underlying drug crime is not an element of a § 843(b) offense that a jury must
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                                  No. 15-40470
find beyond a reasonable doubt. The modified categorical approach is applied
only to “divisible” statutes, i.e. those that “set[] out one or more elements of the
offense in the alternative—for example, stating that burglary involves entry
into a building or an automobile.” Descamps, 133 S. Ct. at 2281 (first emphasis
added, second in original). If, as Martinez-Vidana argues, the drug crime
underlying a § 843(b) conviction is found by a preponderance of the evidence
rather than beyond a reasonable doubt, then it is not an “element” of a § 843(b)
offense, rendering the statute indivisible and prohibiting use of the modified
categorical approach. See id. at 2288 (“[T]he only facts the court can be sure
the jury [found beyond a reasonable doubt] are those constituting elements of
the offense.”).
      We review Martinez-Vidana’s claim for plain error only as he did not
raise it in the district court. See United States v. Chavez-Hernandez, 671 F.3d
494, 497 (5th Cir. 2012). “Plain error review requires four determinations:
whether there was error at all; whether it was plain or obvious; whether the
defendant has been substantially harmed by the error; and whether this court
should exercise its discretion to correct the error in order to prevent a manifest
miscarriage of justice.” Id.
      There is no error. Two prior unpublished decisions of this circuit have
held, in cases substantively identical to the instant one, that the district court
did not commit plain error because the appellant’s argument relies an
extension of Descamps. See United States v. Madrigal-Solorio, 633 Fed. App’x
278 (5th Cir. 2016); United States v. Vilema-Esquivel, 616 Fed. App’x 169 (5th
Cir. 2015).       We now hold precedentially that applicable law forecloses
Martinez-Vidana’s argument.
       Martinez-Vidana’s argument turns on the proposition that proof of the
drug offense underlying a § 843(b) facilitation offense need only be established
by a preponderance of the evidence. He cites United States v. Rey, 641 F.2d
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                                  No. 15-40470
222, 224 n.6 (5th Cir. Unit A March 1981), for this proposition. Rey and other
precedent establish that the underlying drug offense is an element of the
facilitation offense. See, e.g., United States v. Powell, 469 U.S. 57, 60 n.4,
105 S. Ct. 471, 474 n.4 (1984) (“The lower courts seem to agree that the
Government must prove, as an element of a § 843(b) offense, the commission
of the felony that the accused is charged with facilitating.”); United States v.
Mankins, 135 F.3d 946, 949 (5th Cir. 1998) (facilitation element “requires proof
of the underlying drug offense that the defendant is accused of facilitating,
even though it is not separately charged”).      The Supreme Court in Gaudin
made clear, however, that all elements of a crime must be proven beyond a
reasonable doubt. United States v. Gaudin, 515 U.S. 506, 510, 115 S. Ct. 2310,
2313 (1995). To that extent, Rey has been overruled. The Fifth Circuit pattern
jury charge, in accord with this conclusion, instructs the jury that in order to
find the defendant guilty of violating § 843(b) it “must be convinced that the
government has proved . . . beyond a reasonable doubt . . . [t]hat the defendant
used the ‘communication facility’ with the intent to commit [facilitate the
commission of] [cause the commission of] the felony offense of —————
(describe the offense, e.g., possession with intent to distribute a controlled
substance), as that offense has been defined in these instructions.” Fifth Cir.
Pattern Crim. Jury Instruction § 2.94 (2015) (emphasis added). Because the
underlying drug offense must be proven beyond a reasonable doubt, there is no
question that it is an “element” for purposes of Descamps, rendering § 843(b)
divisible and allowing the application of the modified categorical approach.
Because the district court did not err legally, there is no basis for finding plain
error, and the court’s sentence is AFFIRMED.




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