United States v. Quintero ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4950
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
GEOMAR QUINTERO, a/k/a Solis Delqui,
Defendant – Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Robert J. Conrad,
Jr., Chief District Judge. (3:06-cr-00024)
Argued: September 25, 2008 Decided: October 17, 2008
Before WILKINSON, MICHAEL, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: Matthew Segal, FEDERAL DEFENDERS OF WESTERN NORTH
CAROLINA, INC., Asheville, North Carolina, for Appellant. Amy
Elizabeth Ray, OFFICE OF THE UNITED STATES ATTORNEY, Asheville,
North Carolina, for Appellee. ON BRIEF: Cecilia Oseguera,
FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Charlotte,
North Carolina, for Appellant. Gretchen C. F. Shappert, United
States Attorney, Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Geomar Quintero pleaded guilty to one count of illegal
reentry into the United States by a convicted felon in violation
of 8 U.S.C. §§1326(a) and (b)(2). He received a 16-level
sentence enhancement pursuant to U.S. Sentencing Guidelines
Manual §2L1.2(b)(1)(A) based on his previous deportation after
conviction of a “drug trafficking offense” for which the
sentence imposed exceeded 13 months. The defendant appeals this
enhancement. He argues that the sentencing court erred in
finding that his prior conviction qualified as a “drug
trafficking offense” under §2L1.2 and an “aggravated felony”
under §1326(b)(2). He also argues that the sentencing court’s
use of a prior conviction to enhance his sentence violated his
Sixth Amendment right to a jury trial. We reject these
arguments and affirm the sentence.
I.
On March 15, 2006, the defendant pleaded guilty to the
charge of illegal reentry into the United States by a convicted
felon in violation of 8 U.S.C. §§1326(a) and (b)(2). At the
sentencing hearing, the court found an offense level of 21 based
on the presentence report which calculated a base offense level
of eight, a 16-level enhancement pursuant to §2L1.2(b)(1)(A) for
previous deportation after conviction of a “drug trafficking
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offense,” and a three-level reduction for acceptance of
responsibility. The defendant objected to the 16-level
enhancement on the ground that his 1996 conviction under
California Health and Safety Code §11352(a) did not constitute a
“drug trafficking offense.” Specifically, the defendant argued
that because he pleaded no contest to §11352(a), which covers
some conduct that is a “drug trafficking offense” and some
conduct that is not a “drug trafficking offense,” he was not
necessarily convicted of committing a “drug trafficking
offense.” The defendant also objected to the documents
proffered by the government to narrow the charge. The district
court agreed that the statute was too broad to categorically
qualify as a “drug trafficking offense,” but held that the plea
colloquy and other judicially noticeable documents established
that the defendant had pleaded no contest to the sale of cocaine
base which was indisputably a “drug trafficking offense.” The
court found that the defendant’s criminal history category was
II and the corresponding Guidelines’ range for an offense level
of 21 was 41 to 51 months’ imprisonment. The court sentenced
the defendant to 41 months’ imprisonment. Quintero now appeals
this sentence.
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II.
Quintero claims that the sentencing court erred in
enhancing his sentence pursuant to U.S.S.G. §2L1.2 based on a
determination that his 1996 conviction for violating §11352(a)
was a “drug trafficking offense.” We review the sentencing
court’s determination de novo because it is a question of law.
See United States v. Chacon, 533 F.3d 250, 253 (4th Cir. 2008).
According to U.S.S.G. §2L1.2(b)(1)(A), a 16-level
enhancement is warranted for illegal reentry in violation of 8
U.S.C. §1326 if the defendant was previously deported after “a
conviction for a felony that is (i) a drug trafficking offense
for which the sentence imposed exceeded 13 months.” U.S.S.G.
§2L1.2(b)(1)(A). Application Note 1(B)(iv) defines “drug
trafficking offense” as “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 possession with intent to do the
same. U.S.S.G. §2L1.2 cmt. n.1(B)(iv).
The parties argue extensively over whether §11352(a) is a
“drug trafficking offense” on its face and whether the extended
list of verbs in §11352(a) fit within the definition of “drug
trafficking offense” in U.S.S.G. §2L1.2 Application Note
1(B)(iv). We see no need to explore this question because the
plea colloquy so clearly establishes that the defendant’s 1996
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conviction was for selling cocaine base which unquestionably
constitutes a “drug trafficking offense.”
The sentencing court did not err in relying on the plea
colloquy. Shepard v. United States permits courts to look to
elements “necessarily admitted” by the defendant in a prior
guilty plea to determine whether a prior conviction qualifies
for a sentence enhancement. 544 U.S. 13, 16 (2005).
Specifically, courts are permitted to examine the “statutory
definition, charging document, written plea agreement,
transcript of plea colloquy, and any explicit factual finding by
the trial judge to which the defendant assented.” Id.The plea colloquy makes clear that the defendant’s 1996
conviction under §11352(a) was for the sale of cocaine base. On
January 12, 1996, the defendant pleaded no contest to one count
of violating §11352(a) and was sentenced to five years’
imprisonment. There are two clear instances in the plea
colloquy where the defendant admitted that he was pleading no
contest to the sale of cocaine base. First, the court began the
plea hearing by stating: “Charged with selling cocaine base on
July 12, 1995 in violation of §11352(a) of the Health and Safety
Code. Do you understand that charge, Sir?” The defendant
responded “Yes.” Second, the court later asked: “How do you
plead to the charge that you violated Health and Safety Code
§11352(a), sale of cocaine base?” The defendant responded “No
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contest.” These statements establish that the defendant pleaded
no contest to the sale of cocaine base.
The defendant argues that the sentencing court was not
permitted to consider the plea colloquy because the defendant
did not confirm the factual basis for the plea as required by
Shepard, and therefore the facts were not “necessarily admitted”
by the defendant. See Shepard, 544 U.S. at 26 (permitting
courts to look to plea colloquies “in which the factual basis
for the plea was confirmed by the defendant”). We find no merit
in this argument. As discussed above, the defendant directly
admitted that he was pleading no contest to the “sale of cocaine
base” and “selling cocaine base.” Furthermore, during the plea
colloquy defendant’s counsel stipulated to a factual basis after
the defendant made these statements. Therefore, the sentencing
court did not err in relying on the plea colloquy to determine
that the defendant’s 1996 conviction was for the sale of cocaine
base.
The sale of cocaine base undeniably qualifies as a “drug
trafficking offense” under U.S.S.G. §2L1.2 because it is the
“distribution, or dispensing of a controlled substance.” See
U.S.S.G. §2L1.2 cmt. n.1(B)(iv). Therefore, the sentencing
court was correct to conclude that the defendant’s 1996
conviction was a “drug trafficking offense” and did not err in
applying a 16-level enhancement under §2L1.2(b)(1)(A).
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We need not consider the defendant’s arguments with respect
to the admissibility of the other documents. Any possible
resulting errors would be harmless in light of the fact that the
plea colloquy unequivocally establishes that the defendant’s
1996 conviction was a “drug trafficking offense.”*
III.
The defendant also claims that the sentencing court’s use
of his prior conviction to enhance his sentence violates his
Sixth Amendment right to a jury trial. The defendant makes this
argument merely to preserve it for appeal because, as the
defendant properly concedes, current Supreme Court doctrine
forecloses his argument. See Almendarez-Torres v. United
States, 523 U.S. 224 (1998) (holding that the Constitution does
not require that prior convictions be alleged in an indictment
for a guilty plea or proven to a jury beyond a reasonable doubt
in order to be the basis of a sentence enhancement); see also
*
The defendant also claims, apparently for the first time
on appeal, that the district court erred in applying a statutory
sentencing enhancement pursuant to 8 U.S.C. §1326(b)(2) based on
a determination that his 1996 conviction was an “aggravated
felony.” For the reasons stated above, the district court did
not err in relying on the plea colloquy to determine that the
defendant’s 1996 conviction was for the sale of cocaine base.
The sale of cocaine base is unquestionably an “aggravated
felony” which is defined to include “illicit trafficking in a
controlled substance.” 8 U.S.C. §1101(a)(43)(B).
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Apprendi v. New Jersey, 530 U.S. 466, 490 (2000) (“Other than
the fact of a prior conviction, any fact that increases the
penalty for a crime beyond the prescribed statutory maximum must
be submitted to a jury, and proved beyond a reasonable doubt.”)
(emphasis added). Despite some questioning of the continued
vitality of the prior conviction exception, see Shepard, 544
U.S. at 27-28 (Thomas, J., concurring in part and concurring in
the judgment), Almendarez-Torres is still good law and this
court is bound to follow it. See United States v. Cheek, 415
F.3d 349 (4th Cir. 2005). Therefore, we reject the defendant’s
argument.
IV.
For the foregoing reasons, we affirm the sentence.
AFFIRMED
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