                                                             United States Court of Appeals
                                                                      Fifth Circuit
                                                                    F I L E D
                         REVISED June 1, 2007
                                                                      May 24, 2007
               IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT                    Charles R. Fulbruge III
                       ______________________                            Clerk

                               No. 06-20142

                        ______________________

                      UNITED STATES OF AMERICA,

                          Plaintiff-Appellee,

                                  versus

                         JASON JERMAINE FORD,

                         Defendant-Appellant,


           ________________________________________________

        On Appeal from the United States District Court
     For the Southern District of Texas, Houston Division,
          ________________________________________________


Before DAVIS, DENNIS, and PRADO, Circuit Judges.

DENNIS, Circuit Judge:

     The   question   before   this   court   is   whether   a    charge    and

conviction for “possession with an intent to deliver” a controlled

substance under section 481.112(a) of the Texas Health and Safety

Code can be used as a basis for a sentence enhancement as a

“controlled substance offense” under U.S. Sentencing Guidelines

Manual (“USSG”) § 2K2.1(a)(4)(A) (2005). “Controlled substance

offense” is defined in USSG § 4B1.2(b). USSG § 2K2.1 cmt. n. 1.

USSG § 4B1.2(b) states:



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     The term “controlled substance offense” means an offense under
     federal or state law, punishable by imprisonment for a term
     exceeding one year, 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 a counterfeit substance) with intent to
     manufacture, import, export, distribute, or dispense.

We   find    persuasive   two   analogous   cases   that   found   similar

convictions broader than the “drug trafficking offense” definition

in the USSG, which is nearly identical to the definition of

“controlled substance offense.”        In those analogous cases, the

convicted offense encompassed a greater set of acts and intentions

beyond those listed in the “drug trafficking offense” definition.

In other words, since the conviction could be punishing conduct

falling outside USSG’s definition of a “drug trafficking offense,”

sentence enhancements were vacated in those two prior cases.           We

believe a similar result is warranted here for the same reasons.

     We hold that a conviction for “possession with intent to

deliver” under this Texas statute cannot automatically qualify as

a “controlled substance offense” based on the evidence in the

record.     “Possession with intent to deliver” encompasses a set of

intentional acts beyond those listed in USSG’s definition of a

“controlled substance offense.”       We therefore VACATE the sentence

and REMAND to the district court for re-sentencing consistent with

this opinion.

                                   FACTS

     On July 14, 2005, Houston police officers Tran and Ponder



                                                                         2
responded to a call from an individual stating that he had just seen

the person who shot him a few days earlier.    The officers went to

the stated address and saw the alleged shooter inside the apartment

who matched the description provided.   Returning to the apartment

with a Bureau of Alcohol, Firearms, and Tobacco (ATF) Special Agent,

the agents confronted the suspect, later identified as defendant

Jason Jermaine Ford, and the apartment lessee, Crystal McConnell,

at the door. McConnell denied having a firearm in the apartment and

consented to a search.

     While searching, the defendant informed the officers that there

was a .32 caliber firearm on a chair, which Officer Tran immediately

recovered. Ford was then arrested and advised of his rights.    The

ATF agent determined that the firearm was manufactured outside of

the state of Texas.

     On September 8, 2005, a federal grand jury indicted the

defendant on one-count of possession of a firearm after being

convicted of a felony offense, in violation of 18 U.S.C. §§

922(g)(1) and 924(a)(2). Ford entered a guilty plea on November 18,

2005.

     The presentence report calculated Ford’s total offense level

to be seventeen, starting with a base offense level of twenty

pursuant to USSG § 2K2.1(a)(4)(A) for a prior “controlled substance

offense” and then subtracting three levels for the acceptance of

responsibility pursuant to USSG § 3E1.1(a) and (b). A total offense



                                                                   3
level of seventeen combined with a criminal history category of IV

resulted in an imprisonment range of thirty-seven to forty-six

months. Ford objected to the presentence report, arguing that his

conviction was under a Texas statute that penalized acts and intents

outside the USSG’s “controlled substance offense” definition.       As

a result, Ford argued that his conviction should not qualify as a

“controlled substance offense.”      Ford’s charging documents, the

indictment, and the judgment were available to the district court

judge. No underlying facts about the conviction were provided in

these documents.

     Based on a comparison between the language of the conviction

offense and underlying statute as found in these documents with the

definition of “controlled substance offense” in the USSG, the court

below overruled Ford’s objection.    Ford was, therefore, sentenced

on February 10, 2006 to serve thirty-seven months followed by three

years of supervised release.

                               Analysis

     This court reviews the district court’s interpretation and

application of the USSG de novo. United States v. Zuniga-Peralta,

442 F.3d 345, 347 (5th Cir. 2006).    Because Ford's objection was

preserved at trial, we review the record de novo to determine

whether the district court's error was harmless.    United States

v. Lopez-Urbina, 434 F.3d 750, 765 (5th Cir. 2004).

I. Garza-Lopez and Gonzales


                                                                     4
           The issue presented before this court is whether a conviction

for “possession with intent to deliver” criminalizes more acts and

intents than the limited set of conduct subject to sentencing

enhancement as a “controlled substance offense.”                 In two closely

analogous decisions, this court held similar convictions to be

broader than a nearly identical USSG definition of another offense

subject to sentencing enhancement.

       In United States v. Garza-Lopez, 410 F.3d 268, 271 (5th Cir.

2005),         the      defendant        was   previously    convicted       for

“transporting/selling a controlled substance” under section 11379(a)

of the California Health & Safety Code and for that previous

conviction, the district court added a sentence enhancement for a

“drug trafficking offense” under USSG § 2L1.2(b)(1)(A)(i). See USSG

§ 2L1.2 cmt. n. 1(B)(iv) (defining “drug trafficking offense”).1

This       court     held   that   the   “transporting/selling    a   controlled

substance” offense under the California statute was broader than the

USSG’s definition of “drug trafficking offense.” Id. at 274-275. See

also United States v. Kovac, 367 F.3d 1116, 1119 (9th Cir. 2004);

United States v. Navidad-Marcos, 367 F.3d 903, 907-908 (9th Cir.

2004).       The California statute, for instance, “criminalizes the


       1
      “‘Drug trafficking offense’ means 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 a counterfeit substance) with intent to
manufacture, import, export, distribute, or dispense.” USSG §
2L1.2 cmt. n. 1(B)(iv).

                                                                               5
transportation of a controlled substance for personal use and offers

to transport, sell, furnish, administer, or give away a controlled

substance.” Garza-Lopez, 410 F.3d at 274.              None of the listed

activities is covered by the “drug trafficking offense” definition,

which “covers only the manufacture, import, export, distribution,

or dispensing of a controlled substance (or possession with the

intent to do any of these things).” Id.             Therefore this court

concluded the district court had committed plain error in adding a

sentencing enhancement, because the basis for defendant’s underlying

conviction could be conduct that lies outside the narrow definition

of a “drug trafficking offense.”      Id. at 275.

     In United States v. Gonzales,--- F.3d ----,          2007 WL 1063993,

at *2 (5th Cir. 2007) (per curiam) (published), this court held that

a conviction under the same Texas statutory provision found in this

case, section 481.112 of the Texas Health and Safety Code, was

broader than the limited set of offenses subject to a sentencing

enhancement   under   the   USSG’s   definition   of    “drug   trafficking

offense.” Gonzalez was charged and convicted with “unlawful delivery

of a controlled substance” under the same Texas statutory provision.

Id. at *1. In Gonzales, the court noted that “delivery” encompasses

an “offer to sell” under the Texas statutory definition, and an

“offer to sell” is not one of the acts included within the “drug

trafficking offense” definition. Id. See also Tex. Health & Safety

Code Ann. § 481.002(8) (defining “deliver”); Donley v. State, 140



                                                                          6
S.W.3d 428, 429 (Tex. App. 2004) (interpreting “delivery” as any

actual transfer, constructive transfer, or offer to sell); Garza-

Lopez, 410 F.3d at 273 (listing “offers to . . . sell” as conduct

outside USSG’s definition of “drug trafficking offense”).

      Two aspects of this case may distinguish this case from these

two precedents. We find both inconsequential for the judgment in

this case.

      First,    “drug    trafficking   offense,”     and     not   “controlled

substance offense,” is the operative USSG offense in the two

analogous cases described above.            However, the wording in “drug

trafficking offense” and “controlled substance offense” is almost

identical. Compare USSG § 2L1.2 cmt. n. 1(B)(iv)(“drug trafficking

offense”), with USSG § 4B1.2(b) (“controlled substance offense”).

Any   minor    textual   differences   do    not   control   in    this   case.2

Therefore, the definitions of “controlled substance offense” and

“drug trafficking offense” are identical for our purposes here. Cf.

United States v. Gonzalez-Borjas, 125 F.App’x. 556, 559 & n. 9 (5th

Cir. 2005) (unpublished).3

      Unlike the two analogous cases above, the conviction here was


      2
      The two limited textual differences are: (1) “controlled
substance offense” includes a one year term of imprisonment
requirement; and (2) “drug trafficking offense” includes local
law prohibitions. Both are inapposite to this case.
      3
      As a general principle, similar Congressional statutory
language should be read consistently if possible. See Energy
Research Found. v. Defense Nuclear Facilities Safety Bd., 917
F.2d 581, 582-83 (D.C. Cir. 1990).

                                                                               7
for possession with the intent to deliver rather than just delivery

or    transportation.        The     Government     contends     the       element      of

“possession” renders the “intent to deliver” element closer to acts

and    intents   identified     in    the    “controlled       substance        offense”

definition even when “delivery” by itself, without evidence of

actual possession, is not a “controlled substance offense” under

Gonzales.      Possession does not sufficiently           distinguish this case

from   the    analogous     precedent.       In    effect,     there       is   still    a

substantive difference between possession with an intent to deliver,

including an intent to offer to sell drugs, versus possession with

an intent to distribute. If the act of delivery in Gonzalez is

outside the definition of “controlled substance offense,” including

the act of distribution, then, logically, the intent to deliver is

similarly outside that definition and broader than a mere intent to

distribute. Cf. Garza-Lopez, 410 F.3d at 274 (noting that the “drug

trafficking      offense”    definition      “covers    only     the   manufacture,

import,      export,   distribution,        or    dispensing    of     a    controlled

substance (or possession with the intent to do any of these

things)”)(emphasis added).

       An offer to sell and the intent to offer to sell are operative

elements of a conviction whether or not there is also actual

possession.      Cf. United States v. Palacios-Quinonez, 431 F.3d 471,




                                                                                         8
476 (5th Cir. 2005).4 Possession does not somehow transform these

operative intent elements in the conviction. Therefore, whether or

not possession is implicated, the operative element of “intent to

deliver,” per Gonzales, is still broader than intents found in the

“controlled substance offense” definition as “deliver” includes an

offer to sell.    Since this operative intent element is broader, the

whole conviction, regardless of the possession element, is broader

than the “controlled substance offense” definition.

II.   Taylor Analysis

          This analysis is confirmed by the categorical approach of

United States v. Taylor, 495 U.S. 575, 602 (1990).     Under Taylor,



      4
      There is a critical difference between our conclusions here
when compared with the analysis in Palacios-Quinonez, 431 F.3d at
476. In Palacios-Quinonez, this court noted one major difference
between a conviction for an “offer to sell” controlled substances
and a conviction for a “purchase for sale” of a controlled
substance. This court noted that an “offer to sell” does not
necessarily (but could) implicate possession, while a “purchase
for sale” is effectively equivalent and a sub-set of the
“possession with an intent to distribute” offense. Therefore
while an “offer to sell” is broader and falls outside of the
“drug trafficking offense” definition, a “purchase for sale”
would not. Id. at 476. While Ford was convicted with possession,
his intention could still be an offer to sell. His conviction
does not necessarily rise to a “purchase for sale,” because, as a
mere possessor and not a purchaser, he does not necessarily have
a clear right of control over the product. Id. at 476 n. 6
(noting the important differences in legal rights of control of a
purchaser versus a possessor). Therefore, as a mere possessor,
Ford could still be intending to offer to sell what he may not
have a clear right of control or, in other words, the “proverbial
Brooklyn Bridge.” Id. at 476. In effect, an intent to distribute
cannot be inferred as a necessary consequence of mere possession
even if such an intent can be inferred from a “purchase for
sale.”

                                                                    9
a 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. There are two independent elements in Ford’s prior offense:

“possession” and an “intent to deliver.”5

      As we noted earlier, the statutory definition of “deliver” in

the same Texas statute was ruled to encompass a greater number of

acts, particularly “an offer to sell,” than those listed in the

“drug trafficking offense” definition.       Gonzales, 2007 WL 1063993,

at   *1.   Logically,   the   “intent   to   deliver”   element   in   this

conviction encompasses a greater number of intents, such as an

intent to offer to sell, than those intents listed in the “control

substance offense” definition.      Therefore, Ford’s conviction is

broader than the “control substance offense” definition, and, thus,

Ford cannot be subject to the corresponding enhancement.6


      5
      Simple possession alone is not a “controlled substance
offense" under USSG. Salinas v. United States, 547 U.S. 188, 188
(2006) (per curiam). Mere possession has to be coupled with a
statutorily listed intent to be a "controlled substance offense.”
Id.
      6
      In order to preserve the argument for further review, Ford
also contends that his indictment under 18 U.S.C. § 922(g)(1) is
unconstitutional both facially and as applied. An indictment
under 18 U.S.C. § 922(g)(1) requires an effect on interstate
commerce. Ford argues that where the only interstate commerce
nexus is the fact that the firearm at some point in the past
traveled across state lines contravenes the limits of the
commerce power as defined in United States v. Lopez, 514 U.S.
549, 551 (1995). But he concedes his argument is foreclosed by
several opinions by this court. See, e.g., United States v.
Daugherty, 264 F.3d 513, 518 (5th Cir. 2001).

                                                                         10
       Accordingly, the district court erred in enhancing Ford’s

sentence pursuant to USSG § 2K2.1(a)(4)(A). If the “controlled

substance offense” enhancement did not apply, the base level would

have    been   lowered   from   twenty    to    fourteen    under   USSG     §

2K2.1(a)(6)(A).     After applying the two-level downward adjustment

for    acceptance   of   responsibility   per    USSG   §   3E1.1(a),      his

imprisonment range would have been twenty-one to twenty-seven

months. See USSG ch. 5, pt. A, Sentencing Table. The twenty-one to

twenty-seven month sentencing range is far less than the thirty-

seven month sentence imposed.        Without the error, the district

court could not have imposed Ford’s current length of imprisonment.

Therefore, the error was not harmless. See Lopez-Urbina, 434 F.3d

at 765-766. See also United States v. Luciano-Rodriguez, 442 F.3d

320, 323 (5th Cir. 2006).

       For the reasons stated above, we therefore VACATE the sentence

and REMAND to the district court for re-sentencing consistent with

this opinion.




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