United States v. Reyna ( 2007 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 27, 2007
Charles R. Fulbruge III
Clerk
No. 05-20374
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
HECTOR GONZALEZ REYNA,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:04-CR-166
--------------------
Before KING, HIGGINBOTHAM, and GARZA, Circuit Judges.
PER CURIAM:*
Hector Gonzalez Reyna pleaded guilty without a plea
agreement to possession of a firearm by a felon and was sentenced
to 120 months of imprisonment and three years of supervised
release. He appeals his sentence.
Reyna argues that the district court plainly erred by
enhancing his sentence based on a prior conviction for a
“controlled substance offense” because his Texas conviction for
delivery of a controlled substance did not qualify. He contends
that delivery of cocaine as defined under Texas Health and Safety
*
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this opinion should not be published and is not precedent except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.
No. 05-20374
-2-
Code § 481.112 does not automatically qualify as a controlled
substance offense because the statutory definition of delivery
under Texas law includes offering to sell a controlled substance,
which is broader than and includes acts outside of the guidelines
definition of a controlled substance offense. He contends that
the district court was not allowed to rely on the Presentence
report’s (PSR’s) characterization of his offense in determining
whether the prior conviction was a controlled substance offense.
Because Reyna did not object to the application of U.S.S.G.
§ 2K2.1(a)(4)(A) in the district court, this court reviews for
plain error. United States v. Garza-Lopez, 410 F.3d 268, 272
(5th Cir.), cert. denied, 126 S. Ct. 298 (2005).
Section 2K2.1(a)(4)(A) provides for a base offense level of
20 if the “defendant committed any part of the instant offense
subsequent to sustaining one felony conviction of either a crime
of violence or a controlled substance offense.” According to the
PSR, Reyna was convicted in 2000 of delivery of cocaine. Based
on information from the Houston Police Department, Reyna sold two
rocks of crack cocaine to an undercover officer.
“Under the categorical approach set forth in 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.” Garza-Lopez, 410 F.3d at
273. In considering whether a prior conviction qualifies as a
No. 05-20374
-3-
controlled substance offense, the court may look to the statutory
definition and elements of the offense, the charging paper, a
written plea agreement, the guilty-plea transcript, factual
findings by the trial judge to which the defendant assented, or
jury instructions. See Shepard v. United States, 544 U.S. 13, 16
(2005) (addressing enhancement under the Armed Career Criminal
Act (ACCA)); Garza-Lopez, 410 F.3d at 273. However, “a district
court is not permitted to rely on a PSR's characterization of a
defendant's prior offense for enhancement purposes.” Garza-
Lopez, 410 F.3d at 274.
The statutory definition of the offense must be considered
because the record includes only the PSR’s description of the
offense based on information from the police. At the time of
Reyna’s conviction in 2000, § 481.112 provided that: “a person
commits an offense if the person knowingly or intentionally
manufactures, delivers, or possesses with intent to manufacture
or deliver a controlled substance listed in Penalty Group 1.”
§ 481.112(a) (Vernon 1994). “Deliver” is defined to include
“offering to sell a controlled substance.” § 481.002(8) (Vernon
1999).
In United States v. Gonzales, ___ F.3d ___, No. 05-41221,
2007 WL 1063993 at * 1 (5th Cir. Mar. 7, 2007), we considered
whether a conviction under § 481.112 for unlawful delivery of a
controlled substance warranted a 16-level increase under
No. 05-20374
-4-
§ 2L1.2(b)(1)(A)(i), and whether the error affected the
defendant’s substantial rights. We held that the statutory
definition of delivery of a controlled substance, as defined in
§ 481.112, encompasses activity that does not fall within
§ 2L1.2's definition of drug trafficking offense. Id. We held
that the district court erred in applying the drug trafficking
enhancement and that the error was plain. Id.
A “controlled substance offense” under § 2K2.1 has the
meaning given in § 4B1.2(b) and comment.(n.1), and it is defined
in almost the identical manner as a “drug trafficking offense”
within the meaning of § 2L1.2. See § 4B1.2(b); § 2L1.2, comment.
(n.1(B)(iv)). The definitions of “controlled substance offense”
and “drug trafficking offense” are identical for our purposes
under the guidelines.
Our decision in Gonzales, 2007 WL 1063993 at * 1-2, that a
conviction under § 481.112 encompasses activity that does not
fall within § 2L1.2's definition of drug trafficking offense,
applies equally to the definition of controlled substance offense
in § 2K2.1. The district court erred in determining, based on
the PSR’s description of his conduct, that Reyna’s prior
conviction was a controlled substance offense, and the error was
plain. See id.
We must then determine whether the error affected Reyna’s
substantial rights. See id. at * 3. Reyna argues that the
sentencing error affected his substantial rights because absent
No. 05-20374
-5-
the enhancement for a prior conviction for a controlled substance
offense, his correct base offense level would have been 14 under
§ 2K2.1(a)(6), and, with the other unchallenged offense level
adjustments and a criminal history category of III, his guideline
range would have been 41-51 months.
In Gonzales, we determined that the defendant had satisfied
the third prong of plain error because absent the erroneous
enhancement, the defendant’s guideline range would have been
significantly lower than the sentence he received. 2007 WL
1063993 at * 3. We concluded that the defendant had satisfied
the fourth prong of plain error because the district court’s
error clearly affected the sentence. Id. We vacated the
defendant’s sentence and remanded for resentencing. Id.Without the enhancement for a prior conviction for a
“controlled substance offense,” Reyna’s guideline range would
have been 41-51 months, significantly lower than the guideline
range of 78-97 months determined by the district court. Reyna
has satisifed the third prong of plain error. See Gonzales, 2007
WL 1063993 at * 3. If the district court had started with a
guideline range of 41-51 months, it is not clear that the
district court would have varied from the guideline range to 120
months. We conclude that the error clearly affected the
sentence. See Gonzales, 2007 WL 1063993 at * 3.
Reyna also argues that the district court erred by imposing
an unreasonable sentence above the applicable imprisonment range.
No. 05-20374
-6-
We do not reach the reasonableness issue because we cannot say
that the district court’s error in calculating the advisory
Guidelines range did not affect the district court’s selection of
the 120-month sentence because the erroneously calculated
sentencing range served as a reference point for the upward
departure. See United States v. Davis, 478 F.3d 266, 273-74 (5th
Cir. 2007).
Reyna’s sentence is VACATED and the case is REMANDED for
resentencing.