     Case: 16-11766      Document: 00514376706         Page: 1    Date Filed: 03/07/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 16-11766                       United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
UNITED STATES OF AMERICA,                                                   March 7, 2018
                                                                           Lyle W. Cayce
              Plaintiff - Appellee                                              Clerk

v.

DIONICIO ELIZALDE-PEREZ,

              Defendant - Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:15-CR-563-1




Before STEWART, Chief Judge, and CLEMENT and SOUTHWICK, Circuit
Judges.
PER CURIAM:*
       In this appeal, we review the district court’s conclusion that a sentence
enhancement was warranted under the 2015 United States Sentencing
Guidelines (the “Sentencing Guidelines”) for a prior drug trafficking conviction
under state law. We affirm.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 16-11766
                                        I.
      Defendant-Appellant Dionicio Elizalde-Perez pleaded guilty without a
plea agreement to one count of illegally re-entering the country in violation of
8 U.S.C. § 1326(a) on March 8, 2016. The Presentence Report (“PSR”) noted
that the crime had a base offense level of 8 under § 2L1.2 of the 2015
Sentencing Guidelines, but recommended a 16-level enhancement because of a
prior conviction for a “drug trafficking offense.” Specifically, the PSR noted that
Elizalde-Perez had been convicted under § 481.112 of the Texas Health &
Safety Code (the “Code”) for “Unlawful Deliverance of a Controlled Substance.”
Applying a reduction for Elizalde-Perez’s acceptance of responsibility for the
crime, the PSR ultimately recommended that the offense level be set at 21.
After incorporating various other factors, including Elizalde-Perez’s significant
criminal history, the PSR established a sentencing range of 77–96 months.
      On November 1, 2016—one month before Elizalde-Perez’s sentencing
hearing—the 2016 Sentencing Guidelines were enacted. An amended PSR was
issued on November 7, applying the new Guidelines and responding to
Elizalde-Perez’s objections to the previous PSR. Answering his objection to the
16-level enhancement, the amended PSR noted that, while the enhancement
was appropriate under the prior Guidelines, it was “no longer applicable”
under the new ones. As a result of this and other changes, the amended PSR
recommended he receive a lower, 12-level enhancement to the violation and
calculated a sentencing range of 37–46 months.
      At the sentencing hearing, Elizalde-Perez again raised his objection to
the imposition of a 16-level enhancement under the 2015 Guidelines. He noted
that the argument was not moot because the original recommended sentence
would have been only 15–21 months—that is, lower than the amended PSR’s
recommendation under the 2016 Guidelines—had the enhancement not
applied. If the original recommendation was improper, Elizalde-Perez was
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                                    No. 16-11766
entitled to a sentence under the 2015 Guidelines. Cf. United States v. Kimler,
167 F.3d 889, 893 (5th Cir. 1999).
      The district court overruled the objection, concluding that the
enhancement was proper. It then sentenced Elizalde-Perez to 37 months
imprisonment, in accordance with the amended PSR’s recommendations under
the 2016 Sentencing Guidelines. Elizalde-Perez appealed.
                                           II.
      The sole issue before us concerns the 16-level enhancement under the
2015 Guidelines. 1 Specifically, Elizalde-Perez argues that the “Unlawful
Deliverance of a Controlled Substance” offense codified at § 481.112 of the Code
defines a drug trafficking offense more broadly than § 2L1.2 of the 2015
Guidelines. Accordingly, applying the categorical approach, his conviction
under § 481.112 should not have led to the sentence enhancement.
      We review the conclusion “that a prior state conviction constitutes a drug
trafficking offense [under the Sentencing Guidelines] de novo.” United States
v. Lopez-Salas, 513 F.3d 174, 178 (5th Cir. 2008). We “affirm an enhancement
on any ground supported by the record.” United States v. Garcia-Gonzalez, 714
F.3d 306, 314 (5th Cir. 2013).
      The relevant inquiry proceeds in two steps. At the first step, we
determine whether we should apply the categorical approach or a modified
categorical approach when comparing the state and federal definitions of the
crime. Mathis v. United States, 136 S. Ct. 2243, 2248–49 (2016). This
conclusion turns on whether the state statute in question “sets out a single (or
‘indivisible’) set of elements to define a single crime,” or whether it “define[s]



      1  Elizalde-Perez also argues that his sentence was improperly enhanced under 8
U.S.C. § 1326. He concedes that his argument is foreclosed by Almendarez-Torres v. United
States, 523 U.S. 224 (1998), but seeks to preserve the issue for possible Supreme Court
review. We agree that his argument remains foreclosed.
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multiple crimes.” Id. At the second step, we apply the appropriate approach to
the provisions at issue. Id.
      We recently reversed our own precedent in resolving the first step.
Whereas we used to consider § 481.112(a) of the Code a divisible statute
because it outlawed both delivery of controlled substances and possession with
the intent to deliver, United States v. Ford, 509 F.3d 714, 716–17 (5th Cir.
2007), we have since concluded that “[s]ection 481.112(a) is an indivisible
statute to which the modified categorical approach does not apply.” United
States v. Tanksley, 848 F.3d 347, 352 (5th Cir. 2017) (noting that, in light of
this conclusion, Ford’s holding “cannot stand”). Our change of position relied
on the Supreme Court’s guidance in Mathis, which noted that state courts can
provide the definitive answer as to the divisibility of state statutes. 136 S. Ct.
at 2256. We found this definitive answer on § 481.112 from the Texas Court of
Criminal Appeals, which concluded that “[s]ection 481.112 provides several
different means for committing the offense of delivery . . . from the offer to sell,
to the possession of the drugs with the intent to deliver them, to the actual
delivery itself.” Tanksley, 848 F.3d at 352 (quoting Lopez v. State, 108 S.W.3d
293, 299–300 (Tex. Crim. App. 2003)).
      The categorical approach requires us to “focus solely on whether the
elements of the crime of conviction sufficiently match the elements of [the
crime defined in the Sentencing Guidelines], while ignoring the particular facts
of the case.” Mathis, 136 S. Ct. at 2248. More specifically, we must determine
whether the crime of conviction’s elements are either “the same as, or narrower
than” the definition in the Guidelines. Id. “[I]f the crime of conviction covers
any more conduct than” the Guidelines offense, the former cannot qualify as a
violation of the latter—“even if the defendant’s actual conduct . . . fits within
the [latter] offense’s boundaries.” Id.


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                                   No. 16-11766
      We begin this analysis by reviewing the text of the two provisions. The
2015 Sentencing Guidelines permitted a 16-level sentencing increase if “the
defendant previously was deported, or unlawfully remained in the United
States, after . . . a drug trafficking offense for which the sentence imposed
exceeded 13 months.” U.S.S.G. § 2L1.2(b)(1)(A)(i) (2015). A “drug trafficking
offense” includes “an offense under . . . state . . . law that prohibits the
manufacture, import, export, distribution, or dispensing of, or offer to sell a
controlled substance . . . or the possession of a controlled substance . . . with
intent to manufacture, import, export, distribute or dispense.” U.S.S.G. § 2L1.2
cmt. n.1(B)(iv) (2015).
      Section 481.112(a) of the Code prohibits defendants from “knowingly
manufactur[ing], deliver[ing], or possess[ing] with intent to deliver” controlled
substances. A separate provision of the Code provides the definition for
“deliver.” The term “means to transfer, actually or constructively, to another a
controlled substance . . . . [and] includes offering to sell a controlled substance.”
Tex. Health & Safety Code Ann. § 481.002(8).
      Elizalde-Perez asserts that there is a single difference between the two
statutes: the Code defines the drug offense to include possession with the
intent to offer to sell, while the Sentencing Guideline does not. He supports
this interpretation by noting that it is a crime under § 481.112 to “possess[ ]
with intent to deliver” and § 481.002(8) defines “delivery” to include “offering
to sell.” By contrast, under the applicable provision in the Sentencing
Guidelines, drug trafficking includes the act of “offer[ing] to sell” drugs, but
omits the intent to “offer to sell” from its list of possession charges that qualify.
U.S.S.G. § 2L1.2 cmt. n.1(B)(iv) (2015).
      But Elizalde-Perez has highlighted a textual distinction between the
provisions that lacks a meaningful difference. We have considered this
interpretative question before. In United States v. Ford, we compared the
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                                       No. 16-11766
definition of drug possession in the same provision of the Code with the
definition of drug possession in an identically-worded provision of the
Guidelines—the Career Offender provision at § 4B1.2(b). 2 509 F.3d at 717. We
concluded that “it is pure sophistry to distinguish” between possession with the
intent to “deliver drugs” under the Code—which, again, explicitly includes
possession with the intent to offer for sale—and possession with the intent to
“distribute drugs” as defined by § 4B1.2—which does not explicitly include
possession with the intent to offer for sale. Id.
       Our conclusion was based on a review of prior cases in which we found
the absence of the “offer to sell” language in the Guidelines significant. Id. at
716–17. We determined that the act of “offering to sell” was distinct from the
other drug trafficking acts listed in the Guidelines because “[o]ne may ‘offer to
sell’ drugs without possessing those drugs.” Id. at 717. But no such distinction
exists when the defendant’s underlying conviction was for illegal drug
possession. Id. Thus, we concluded that a conviction under the Code for illegal
drug possession was “equivalent to the drug trafficking offense” under the
Guidelines and could be used to enhance the defendant’s sentence. Id.; see
United States v. Olson, 849 F.3d 230, 232 (5th Cir. 2017) (citing Ford for the
proposition, “[p]ossession of a controlled substance with the intent to sell,
deliver or, distribute it plainly qualifies as a controlled-substance offense
under § 4B1.1”). 3


       2  Because of the similarities between § 4B1.2 and § 2L1.2 in the Guidelines, “we often
treat cases dealing with [them] interchangeably,” so long as there are no “salient statutory
distinction[s]” between them. United States v. Herrera-Alvarez, 753 F.3d 132, 136 (5th Cir.
2014) (internal quotation omitted). Here, there are no distinctions: Section 4B1.2(b)’s
definition of a “controlled substance offense” includes “the possession of a controlled
substance . . . with intent to manufacture, import, export, distribute, or dispense.” This
mirrors the definition of “drug trafficking” offense for possession in § 2L1.2.
        3 As already noted, Ford was abrogated by Tanksley because it applied the modified
categorical approach to § 481.112. In other words, Ford was overturned only insofar as it
considered the Code’s drug possession offense as a separate and distinct crime from the other
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                                        No. 16-11766
       Our conclusion in Ford resolves Elizalde-Perez’s assertion here: Section
2L1.2’s omission of the phrase, “offer to sell,” from its definition of the
possessory crime does not create a meaningful distinction from § 481.112 of the
Code. Moreover, § 2L1.2 defines “drug trafficking” to specifically include the
act of “offer[ing] to sell” contraband. U.S.S.G. § 2L1.2 cmt. n.1(B)(iv) (2015).
Accordingly, our historic concern regarding the omission of this phrase (as
chronicled in Ford) does not apply. 4 Taken as a whole, then, the elements of
Elizalde-Perez’s drug trafficking conviction under the Code fall entirely within
the 2015 Guideline’s definition. Accordingly, the district court did not err when
it determined that this prior conviction merited an enhancement under the
2015 Guidelines.
       Lastly, we note that we recently imposed a new requirement on
defendants seeking to challenge a sentence enhancement by applying the




delivery offenses. See Tanksley, 848 F.3d at 351. This conclusion is untenable in light of the
Supreme Court’s guidance in Mathis: Section 481.112 is indivisible. Id. at 352.
        But, under the rule of orderliness, a prior panel’s interpretation of law remains
binding so long as it has not specifically been overridden by statutory amendment, this court
sitting en banc, or the Supreme Court. Vaughan v. Anderson Reg’l Med. Ctr., 849 F.3d 588,
591 (5th Cir. 2017) (“[E]ven if a panel’s interpretation of the law appears flawed, the rule of
orderliness prevents a subsequent panel from declaring it void.” (internal citation omitted)).
And although Mathis overturned Ford, it did not do so on the basis of Ford’s interpretation
of the Code or the Guidelines. Accordingly, Ford’s interpretation of the “offer to sell” provision
in the Code was unaffected. See Cent. Pines Land Co. v. United States, 274 F.3d 881, 893–94
(5th Cir. 2001); cf. Olson, 849 F.3d at 232 (issued after Tanksley, yet still citing Ford for the
proposition that “[p]ossession of a controlled substance with the intent to sell, deliver or,
distribute it plainly qualifies as a controlled-substance offense under § 4B1.1”).
        4 The phrase was first added to § 2L1.2 in the 2008 Sentencing Guidelines. Compare

U.S.S.G. § 2L1.2 cmt. n.1(B)(iv) (2007) with U.S.S.G. § 2L1.2 cmt. n.1(B)(iv) (2008). We reject
Elizalde-Perez’s argument that this modification somehow overturns Ford’s interpretation of
the Guideline’s definition of the possessory offense, the wording of which was unaltered.
Furthermore, we note that the addition came soon after this court—as well as other circuit
courts—concluded that “drug trafficking” under § 2L1.2 did not include the participation in
drug transactions when that participation occurred without actual or constructive possession
of the drugs. See, e.g., United States v. Gonzales, 484 F.3d 712 (5th Cir. 2007); United States
v. Aguilar-Ortiz, 450 F.3d 1271 (11th Cir. 2006) (soliciting to sell drugs not covered by §
2L1.2); United States v. Garza-Lopez, 410 F.3d 268 (5th Cir. 2005).
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categorical approach. Specifically, when defendants argue that a statute of
conviction is overbroad, they must show “a realistic probability, not a
theoretical possibility, that the State would apply its statute to conduct that
falls outside” the Guideline’s definition. United States v. Castillo-Rivera, 853
F.3d 218, 222 (5th Cir. 2017) (en banc) (quoting Gonzales v. Duenas-Alvarez,
549 U.S. 183, 193 (2007)); see United States v. Espinoza-Bazaldua, No. 16-
41069, 2017 WL 4641264, at *4 (5th Cir. Oct. 16, 2017). Defendants “cannot
simply point to certain crimes that may be included” in the statute of
conviction, but are omitted in the other; instead, they must show that the state
has “actually applied [the statute] in this way.” Castillo-Rivera, 853 F.3d at
222.
        Castillo-Rivera was issued months before Elizalde-Perez submitted his
briefing. Yet no mention of the case is made, nor did he provide any evidence
that Texas has enforced § 481.112 against someone for possessing drugs with
the intent to offer to sell them. Accordingly, even if we were persuaded that
Elizalde-Perez had pointed out a meaningful distinction between the statute
and the Guidelines, we have an independent, alterative basis to reject his
claim.
        AFFIRMED.




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