     Case: 12-40974       Document: 00512309262         Page: 1     Date Filed: 07/16/2013




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                            July 16, 2013

                                       No. 12-40974                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

JOSE VICENTE HERNANDEZ-DE AZA,

                                                  Defendant-Appellant



                   Appeal from the United States District Court
                        for the Southern District of Texas
                           USDC No. 7:12-cr-00580-ALL


Before DENNIS, CLEMENT, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Jose Vicente Hernandez-de Aza (“Hernandez”) appeals the district court’s
determination that his New York conviction for sale of a controlled substance
was a drug trafficking offense. For the following reasons, we AFFIRM.
                           FACTS AND PROCEEDINGS
       Hernandez pleaded guilty without a plea agreement to illegal re-entry into
the United States after a prior deportation, in violation of 8 U.S.C. § 1326(a) and


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 12-40974

(b). The probation officer prepared a presentence report (“PSR”), which listed
three prior New York state offenses: (1) attempted criminal sale of a controlled
substance in the third degree for which Hernandez received 5 years probation;
(2) criminal possession of a controlled substance in the third degree for which he
received 7 to 14 years imprisonment; and (3) criminal sale of a controlled
substance in the fifth degree for which he received 18 months to 3 years
imprisonment. The probation officer determined that the first offense fit the
definition of an “aggravated felony” under 8 U.S.C. § 1101(a)(43)(B) and qualified
for an 8-level increase in offense level under U.S.S.G. § 2L1.2(b)(1)(C); the second
offense fit the definition of a “felony” and qualified for a 4-level increase in
offense level under U.S.S.G. § 2L1.2(b)(1)(D); and the third offense fit the
definition of a “drug trafficking offense” under U.S.S.G. § 2L1.2, cmt. n.1(B)(iv),
and qualified for a 16-level increase in offense level under U.S.S.G. §
2L1.2(b)(1)(A). Pursuant to U.S.S.G. § 2L1.2(b)(1), the probation officer applied
the enhancement that yielded the greatest increase in offense level, and
recommended a 16-level increase for the 2003 conviction for criminal sale of a
controlled substance.
      The probation officer set Hernandez’s base offense level at 8 pursuant to
U.S.S.G. § 2L1.2(a) but recommended a 2-level reduction for acceptance of
responsibility under U.S.S.G. § 3E1.1(a), leaving Hernandez with a total
combined offense level of 22. Hernandez was assessed 8 criminal history points,
which placed him in a criminal history category of IV, resulting in a Guidelines
range of 63 to 78 months. The Government later moved for (and the district
court granted) a one-level reduction in offense level under U.S.S.G. § 3E1.1(b),
leaving Hernandez with a total offense level of 21, and a Guidelines range of 57
to 71 months.
      Hernandez filed written objections to the PSR, stating that:



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                                   No. 12-40974

      Mr. Hernandez-De Aza objects to the proposed 16-level and 8-level
      enhancements because there is no showing that he was convicted of
      a drug trafficking offense as set forth in U.S.S.G. § 2L1.2(b)(1)(A)(i)
      and that he was sentenced to a term of imprisonment or placed on
      probation, respectively. The Government has not met its burden of
      proving with competent evidence that Mr. Hernandez-De Aza was
      convicted of a drug trafficking offense and that he was sentenced to
      a term of imprisonment exceeding 13 months or that he received
      probation, respectively.1 The Government has not produced the
      kinds of proof that are acceptable for this purpose under Taylor v.
      United States, 495 U.S. 575 (1990) and Shepard v. United States,
      125 S.Ct. 1254 (2005). . . . Mr. Hernandez- De Aza hereby requests
      any and all written documentation of the alleged conviction made
      the subject of the 16-level and 8-level enhancements.

      In the alternative, in the event it is determined that Mr.
      Hernandez-De Aza was so convicted, it is urged that it has not been
      established that same is a drug trafficking offense. No more than a
      four-level upward adjustment should be made.

Hernandez also requested a departure from the Guidelines range, urging that
“a sentence well below the recommended guideline range is sufficient to comply
with the requisites of 18 U.S.C. § 3553(a).”
      In response to the objections, the probation officer forwarded copies of the
New York judgment, information, and statute of conviction to the district court,
the prosecutor, and defense counsel. At sentencing, defense counsel noted that
he had “now seen the documents,” but argued that the documents were “not
sufficient to establish that, in fact, Mr. Hernandez was convicted of a drug
trafficking offense.” He also argued, in the alternative, that “the elements
required in order to prove a conviction for either of these offenses expands more
broadly than the typical definition of a drug trafficking offense,” although he was
unable to provide a specific example of how the statute was overly-broad.


      1
              On appeal, Hernandez does not challenge that his sentence was for a term
longer than 13 months.

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      The district court ruled that the New York statute categorically qualified
as a drug trafficking offense, and that the documentation provided established
that Hernandez was convicted of violating that statute. The district court
acknowledged that there was no indictment included with the documentation,
but that there was an “information that reflects the charge as being attempted
criminal sale of a controlled substance,” as well as a “Certificate which
references, again, the same statute.”
      The district court calculated the Guidelines range, balanced the § 3553(a)
factors, and sentenced Hernandez to 57 months imprisonment, at the bottom of
the Guidelines range. Hernandez appeals, challenging only the imposition of the
16-level enhancement.
                          STANDARD OF REVIEW
      “This Court reviews de novo a district court’s conclusion that a prior
conviction constitutes a drug trafficking offense.” United States v. Henao-Melo,
591 F.3d 798, 801 (5th Cir. 2009). Hernandez argues on appeal that the
definition of “sell” under New York law is broader than the conventional
definition of sell, and therefore the statute of conviction is not categorically a
drug trafficking offense. However, before the district court, Hernandez only
argued that the New York offense was not a drug trafficking offense, and that
it “expand[ed] more broadly than the typical definition of a drug trafficking
offense.” Because Hernandez made no argument in support of his position that
the New York offense was overly broad, as he concedes, this court reviews his
claim on appeal for plain error only. United States v. Chavez-Hernandez, 671
F.3d 494, 497 (5th Cir. 2012). Under plain error review, this court evaluates
whether (1) there was an error, (2) which was plain, (3) that affected the
defendant’s substantial rights, and (4) seriously affected the fairness, integrity,
or public reputation of the judicial proceedings. United States v. Olano, 507 U.S.



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                                    No. 12-40974

725, 732 (1993); United States v. Mudekunye, 646 F.3d 281, 295-96 (5th Cir.
2011).
                                  DISCUSSION
      Under the categorical approach of Taylor v. United States, 495 U.S. 575,
602 (1990), “a district court looks to the elements of a prior offense, rather than
to the facts underlying the conviction, when classifying a prior offense for
sentence enhancement purposes.” United States v. Garza-Lopez, 410 F.3d 268,
273 (5th Cir. 2005) (citing Taylor, 495 U.S. at 602; United States v.
Gracia-Cantu, 302 F.3d 308, 309 (5th Cir. 2002)). “In a ‘narrow range of cases,’
however, a district court may look beyond the elements of the offense when
making such a determination,” Id. (quoting Taylor, 495 U.S. at 602), if the
statute is a “divisible statute.” Descamps v. United States, 133 S.Ct. 2276, 2281
(2013). If one or more alternative elements of the offense matches the generic
offense, the modified categorical approach permits sentencing courts to consider
supplemental documents to determine which alternative formed the basis of the
defendant’s prior conviction. Id.
      i.     Statutory elements
      The first question is whether the statutory elements of the New York law
render it, categorically, a drug trafficking offense. Hernandez was convicted of
attempted criminal sale of a controlled substance in the fifth degree in violation
of New York Penal Law § 220.31, which prohibits the “knowing[] and unlawful[]
s[ale of] a controlled substance.” A drug trafficking offense is defined as “an
offense under federal, state, or local 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,
export, distribute, or dispense.” U.S.S.G. § 2L1.2, cmt. n.1(B)(iv).
      Hernandez argues that New York Penal Law § 220.31 cannot be treated
categorically as a drug trafficking offense because the definition of “sell” under

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the New York law is broader than the conventional definition of the term “sell.”
See United States v. Ellis, 564 F.3d 370, 372 (5th Cir. 2009) (“If the state
definition for an offense is broader than the generic definition, a conviction
under that state’s law cannot serve as a predicate for the enhancement.”); see
also United States v. Ford, 509 F.3d 714, 721 n.11 (5th Cir. 2007). The New
York statutory definition for the offense provides that “sell” means “to sell,
exchange, give or dispose of to another, or offer or agree to do the same.” New
York Penal Law § 220.00(1) (emphasis added).
       Hernandez relies heavily on United States v. Garza-Lopez to argue that
offers to sell controlled substances do not fit within the Guidelines definition of
a drug trafficking offense. 410 F.3d at 274. However, the Guidelines were
amended in November 2008 to explicitly include offers to sell within the
definition of a drug trafficking offense. United States v. Marban-Calderon, 631
F.3d 210, 212 (5th Cir. 2011). This argument is without merit.
       The proper question is whether, under New York’s definition of “sell,” the
terms “sell,” “exchange,” “give,” and “dispose of” fit within the definition of
“distribution or dispensing” controlled substances, which in turn fit the
definition of a drug trafficking offense.2 Although this circuit has addressed this
issue in analogous contexts, it has not yet answered this question as it applies
to the New York statute in question, and particularly its use of the term “give.”
See Marban-Calderon, 631 F.3d at 212-13 (holding that a statute that prohibits
“delivery of a controlled substance—whether by active transfer, by constructive
transfer, or by offer to sell—necessarily qualifies as a drug trafficking offense
under the Sentencing Guidelines”); United States v. Fuentes-Oyervides, 541 F.3d



       2
               Because Section 220.00(1) lists “to sell” as one of the definitions of “sell,” “[i]n
order to give the statute a non-circular definition, the term ‘to sell’ as it is used within the
statutory definition of ‘sell’ must be given its ordinary meaning.” United States v. Stanley, 281
F. App’x 370, 373 (5th Cir. 2008) (unpublished).

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286, 289 (5th Cir. 2008) (when an offense requires “the actual distribution of a
controlled substance rather than mere possession,” all violations of that statute
“qualify under the first part of the Guideline as ‘distribution’ of a controlled
substance” (internal quotation marks omitted)); United States v. Sandoval-Ruiz,
543 F.3d 733, 735 (5th Cir. 2008) (holding that a statute which prohibited
delivery of a controlled substance “fit comfortably within the federal definition
of a drug-trafficking offense”); see also United States v. Wallace, 532 F.3d 126,
129 (2d Cir. 2008) (holding that distribution does not require remuneration);
United States v. Cormier, 468 F.3d 63, 70 n.3 (1st Cir. 2006) (same); United
States v. Washington, 41 F.3d 917, 919-20 (4th Cir. 1994) (same); Shorter Oxford
English Dictionary, Vol. I 710 (6th ed. 2007) (defining “dispense” as “distribute,
deal out; give out as a share from a general stock” (emphasis added)). But see
United States v. Flores Jimenez, 472 F. App’x 310, 311 (5th Cir. 2012) (assuming,
without deciding, that “giving” drugs to another is not categorically a drug
trafficking offense).
      Hernandez also alleges that an offer to give or dispose of a controlled
substance is outside the current definition of the Guidelines, which prohibit only
offers to sell controlled substances.    On one hand, “offer to sell” could be
interpreted to include an offer to do any of the activities preceding that clause
in the statutory definition, giving the statute a similar structure to the New
York offense. Under this construction, an offer to give a controlled substance
would fit within the Guidelines definition of a drug trafficking offense, assuming
“give” also fit this definition. See infra. On the other hand, “offer to sell” could
be interpreted disjunctively, excluding mere distribution or dispensation without
monetary gain.
      Because our case law has not yet conclusively answered the question of
whether the act of “giving” or “offering to give” a controlled substance fits the
definition of a drug trafficking offense under the post-2008 version of the

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Guidelines, see, e.g., United States v. Castillo-Estevez, 597 F.3d 238 (5th Cir.
2010) (assuming, without deciding, that a New York statute prohibiting criminal
sale of a controlled substance qualified as a drug trafficking offense under the
amended Guidelines); but see Flores Jimenez, 472 F. App’x at 311 (assuming the
contrary, also without deciding), the district court’s conclusion that the New
York statute categorically qualified as a drug trafficking offense, if in error, did
not rise to the level of an error that was “clear or obvious.” Ellis, 564 F.3d at 377
(quoting Puckett v. United States, 556 U.S. 129, 135 (2009)). Hernandez has not
pointed to any case which conclusively demonstrates that the New York statute
is broader than the definition of a drug trafficking offense under the amended
Guidelines, and the New York statute is capable of varying interpretations, at
least one of which could render it a drug trafficking offense under the categorical
approach. We hold that this issue is subject to reasonable dispute, and therefore
decline to disturb the district court’s ruling on plain error review. See id. at 377-
78.3
                                      CONCLUSION
        The judgment of the district court is AFFIRMED.




        3
               The Supreme Court recently held that a conviction under a Georgia statute
similar to the New York statute at issue here did not amount to a felony under the Controlled
Substances Act. See Moncreiffe v. Holder, 133 S.Ct. 1678 (2013). It is not yet clear how and
to what extent that opinion will influence this circuit’s treatment of drug trafficking offenses
under U.S.S.G. § 2L1.2. See Ford, 509 F.3d at 717 n.2 (acknowledging that the definition of
“controlled substance offense” may inform the definition of “drug trafficking offense”); see also
Davila v. Holder, 381 F. App’x 413, 415 (5th Cir. 2010) (holding that a New York conviction
for criminal sale of a controlled substance was not a felony under the Controlled Substances
Act because the Act did not prohibit offers to sell). Until a more explicit statement is made
by this court, this holding is not sufficient to render the district court’s error “plain.”

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