United States v. Francisco Pineda-Goigochea , 640 F. App'x 851 ( 2016 )


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  •            Case: 15-12837   Date Filed: 01/13/2016   Page: 1 of 6
    [DO NOT PUBLISH]
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE ELEVENTH CIRCUIT
    ________________________
    No. 15-12837
    Non-Argument Calendar
    ________________________
    D.C. Docket No. 1:15-cr-00047-LMM-JSA-1
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    versus
    FRANCISCO PINEDA-GOIGOCHEA,
    Defendant-Appellant.
    ________________________
    Appeal from the United States District Court
    for the Northern District of Georgia
    ________________________
    (January 13, 2016)
    Before WILSON, WILLIAM PRYOR, and FAY, Circuit Judges.
    PER CURIAM:
    Case: 15-12837     Date Filed: 01/13/2016    Page: 2 of 6
    Francisco Pineda-Goigochea appeals his 36-month sentence, imposed below
    the advisory guideline range, after he pled guilty to illegally re-entering the United
    States after having previously been removed, in violation of 8 U.S.C. § 1326(a)
    and (b)(2). After reviewing the record and considering the parties’ briefs, we find
    that the district court did not err in enhancing Pineda-Goigochea’s offense level
    based on his prior conviction for cocaine trafficking in Georgia. Despite Pineda-
    Goigochea’s arguments to the contrary, controlling precedent holds that the
    Georgia crime of drug trafficking is a qualifying predicate offense for sentence
    enhancement under § 2L1.2 of the Sentencing Guidelines. Accordingly, we affirm
    Pineda-Goigochea’s sentence.
    I.
    We review de novo whether a defendant’s prior conviction constitutes a
    “drug trafficking offense” under § 2L1.2. See United States v. Aguilar-Ortiz, 
    450 F.3d 1271
    , 1272 (11th Cir. 2006). Pursuant to § 2L1.2, a base offense level of
    eight applies to defendants convicted under 8 U.S.C. § 1326. U.S.S.G. § 2L1.2(a).
    Section 2L1.2(b)(1)(A) increases the guideline range by 16 levels if the defendant
    was removed after a conviction for a “drug trafficking offense for which the
    sentence imposed exceeded 13 months.”
    The Application Notes to § 2L1.2 define a “drug trafficking offense” to
    mean “an offense under federal, state, or local law that prohibits the manufacture,
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    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.” 
    Id. § 2L1.2
    cmt. n.1(B)(iv). In Georgia, a
    person who “knowingly sells, manufactures, delivers, or brings into [Georgia] or
    who is knowingly in possession of 28 grams or more of cocaine . . . commits the
    felony offense of trafficking in cocaine.” O.C.G.A. § 16-13-31(a)(1) (2003)
    (amended 2012).
    II.
    On appeal, Pineda-Goigochea, who has a prior conviction for cocaine
    trafficking in Georgia, argues that his guideline offense level should not have been
    increased by 16 levels pursuant to U.S.S.G. § 2L1.2(b)(1)(A), despite our holding
    to the contrary in United States v. Madera-Madera, 
    333 F.3d 1228
    (11th Cir.
    2003). In support, he avers that Madera-Madera has been abrogated by the
    Supreme Court’s decision in Moncrieffe v. Holder, 569 U.S. __, 
    133 S. Ct. 1678
    (2013). He also asserts the Madera-Madera panel did not use the categorical
    approach required by Taylor v. United States, 
    495 U.S. 575
    , 600, 
    110 S. Ct. 2143
    ,
    2159 (1990), and related cases. We address each argument in turn.
    A. Moncrieffe Does Not Abrogate Madera-Madera
    In Madera-Madera, we considered whether a conviction for possession of
    methamphetamine under Georgia’s drug trafficking statute constituted a “drug
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    trafficking offense” under § 
    2L1.2(b)(1)(A). 333 F.3d at 1229
    –30. We examined
    Georgia’s three-tiered statutory scheme for punishing drug crimes and determined
    that Georgia considered “drug trafficking . . . a more serious offense than either
    simple possession or possession with intent to distribute.” 
    Id. at 1231–32.
    We also
    reasoned that the Georgia statute created a dividing line of 28 grams between
    possession, possession with the intent to distribute, and drug trafficking that
    recognized that someone with possession of such a significant quantity of drugs
    planned on distributing “and thereby ‘trafficking’ those drugs.” 
    Id. at 1232.
    Lastly, we rejected the defendant’s argument that § 2L1.2’s definition of “drug
    trafficking offense” required the statutory element of intent to distribute be actually
    present in the language of the statute of conviction, because the Sentencing
    Commission chose not to define a “drug trafficking offense” by its elements, but
    instead “by the type of conduct prohibited by the state statute.” 
    Id. at 1233
    (internal quotation marks omitted).
    In Moncrieffe, the Supreme Court addressed whether a conviction under a
    Georgia statute that made it a crime to possess marijuana with intent to distribute
    met the definition of a drug trafficking aggravated felony under the Immigration
    and Nationality Act (INA), 8 U.S.C. § 1101(a)(43), which defines the term as any
    drug trafficking offense listed in 18 U.S.C. § 924(c)(2). 
    See 133 S. Ct. at 1683
    –84.
    The Court held that, when looking at whether a state conviction qualifies as an
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    aggravated felony under the INA, a court must determine whether the state offense
    is comparable to an offense listed under the INA. See 
    id. at 1684.
    Because the
    conviction at issue could correspond to either a federal felony or misdemeanor, the
    conviction did not “necessarily” involve facts that corresponded to an offense
    punishable as a felony and did not qualify as an aggravated felony. 
    Id. at 1686–87
    (internal quotation marks omitted). Thus, the Supreme Court’s Moncrieffe
    decision does not abrogate or supplant Madera-Madera, because it merely
    determined that Georgia possession of marijuana offense was a misdemeanor and,
    therefore, could not be an “aggravated felony” under the INA.
    B. Madera-Madera Comports with Taylor
    Pineda-Goigochea next avers that, even if Moncrieffe did not supplant
    Madera-Madera, that decision is nevertheless not good law because it did not use
    the categorical approach required by the Supreme Court in Taylor, 
    495 U.S. 575
    ,
    
    110 S. Ct. 2143
    , and subsequent cases developing that approach. However,
    Madera-Madera did use, in essence, the categorical approach by performing an
    analysis of the elements of the Georgia drug trafficking statute. The reasoning,
    therefore, remains sound. Importantly, the reasoning in Madera-Madera has been
    used by this court in subsequent cases analyzing similar sentencing enhancement
    issues. For instance, in United States v. James, using the categorical approach, we
    determined that the defendant’s prior conviction under Florida state law for
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    “trafficking in cocaine by possession of between 200 and 400 grams of cocaine,”
    was a “serious drug offense” under the Armed Career Criminal Act. See 
    430 F.3d 1150
    , 1151–52, 1154 (11th Cir. 2005) (internal quotation marks omitted). We
    compared the case to Madera-Madera and concluded that the reasoning therein
    was controlling. 
    Id. at 1154–55.
    III.
    Accordingly, the district court did not err in enhancing Pineda-Goigochea’s
    offense level based on his prior conviction for cocaine trafficking in Georgia
    because we previously held in Madera-Madera that the Georgia cocaine
    trafficking offense is a qualifying predicate offense under § 2L1.2(b)(1)(A).
    Madera-Madera has not been abrogated or otherwise overruled, and it is still
    controlling precedent. See United States v. Archer, 
    531 F.3d 1347
    , 1352 (11th Cir.
    2008) (“[A] prior panel’s holding is binding on all subsequent panels unless and
    until it is overruled or undermined to the point of abrogation by the Supreme Court
    or by this court sitting en banc.”). Thus, the sentencing decision of the district
    court is hereby
    AFFIRMED.
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