United States v. Ford , 509 F.3d 714 ( 2007 )

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:
1
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.
11