United States v. Morales-Perez , 467 F.3d 1219 ( 2006 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 05-10115
Plaintiff-Appellee, D.C. No.
v. CR-04-00094-JCM
RODRIGO ALEJANDRO MORALES- ORDER
PEREZ,
Defendant-Appellant.  WITHDRAWING
OPINION AND
DENYING
PETITION FOR
REHEARING EN
BANC AND
 OPINION
Appeal from the United States District Court
for the District of Nevada
James C. Mahan, District Judge, Presiding
Argued and Submitted
November 18, 2005—San Francisco, California
Filed November 13, 2006
Before: Alfred T. Goodwin, Diarmuid F. O’Scannlain, and
Richard C. Tallman, Circuit Judges.
Opinion by Judge Tallman
18455
18458 UNITED STATES v. MORALES-PEREZ
COUNSEL
Rene L. Valladares, Assistant Federal Public Defender, Las
Vegas, Nevada, for the appellant.
Elizabeth A. Olson, United States Department of Justice,
Criminal Division, Washington, D.C., for the appellee.
ORDER
The panel opinion filed on May 31, 2006, is withdrawn. A
substitute opinion shall be filed concurrently with this order.
Judges O’Scannlain and Tallman have voted to deny the
petition for rehearing en banc, and Judge Goodwin so recom-
mends.
The full court has been advised of the petition for rehearing
en banc and no judge has requested a vote on whether to
rehear the matter en banc. Fed. R. App. P. 35.
The petition for rehearing en banc is denied. No further
petitions for rehearing shall be entertained.
UNITED STATES v. MORALES-PEREZ 18459
OPINION
TALLMAN, Circuit Judge:
Rodrigo Alejandro Morales-Perez (“Morales-Perez”) pled
guilty to one count of unlawful reentry of a deported alien in
violation of 8 U.S.C. § 1326. He appeals his 70-month sen-
tence, arguing that the district court erred when it concluded
that his prior conviction under California Health and Safety
Code section 11351.5 for possession or purchase of cocaine
base with intent to distribute categorically qualified as a drug
trafficking offense under the United States Sentencing Guide-
lines. See U.S.S.G. § 2L1.2(b)(1)(A). Morales-Perez also con-
tends that the district court erred in sentencing him above the
two-year statutory maximum for convictions under 8 U.S.C.
§ 1326 based on his prior conviction. We affirm the district
court. The definition of drug trafficking offense contained
within the Sentencing Guidelines encompasses both posses-
sion and purchase with intent to distribute. See U.S.S.G.
§ 2L1.2 cmt. n.1(B)(iv). Furthermore, the district court prop-
erly considered Morales-Perez’s prior conviction in sentenc-
ing him above the statutory maximum. See Almendarez-
Torres v. United States, 523 U.S. 224 (1998). However,
because Morales-Perez preserved his challenge to the district
court’s use of mandatory Sentencing Guidelines (a “noncon-
stitutional Booker error”), see United States v. Beng-Salazar,
452 F.3d 1088, 1092 (9th Cir. 2006), and because we cannot
say that the error was harmless beyond a reasonable doubt, we
vacate the judgment and remand for full resentencing, see id.
at 1095-97.
I
The district court had jurisdiction pursuant to 18 U.S.C.
§ 3231 and we have jurisdiction pursuant to 28 U.S.C. § 1291.
We review the district court’s interpretation of the Sentencing
Guidelines de novo. United States v. Shumate, 329 F.3d 1026,
1028 (9th Cir. 2003).
18460 UNITED STATES v. MORALES-PEREZ
II
The base offense level for a conviction under 8 U.S.C.
§ 1326 is eight. U.S.S.G. § 2L1.2(a). During sentencing, the
Government sought a 16-level enhancement, contending that
Morales-Perez’s prior California conviction for possession or
purchase of cocaine base for purposes of sale qualified as a
drug trafficking offense within the meaning of U.S.S.G.
§ 2L1.2(b)(1)(A). The Sentencing Guidelines define drug traf-
ficking offense as “an offense under federal, state, or local
law that prohibits the manufacture, import, export, distribu-
tion, 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.” Id. § 2L1.2 cmt. n.1(B)(iv).
Morales-Perez objected to the 16-level enhancement. Sec-
tion 11351.5 states, in pertinent part: “[E]very person who
possesses for sale or purchases for purposes of sale cocaine
base . . . shall be punished by imprisonment in the state prison
for a period of three, four, or five years.” CAL. HEALTH &
SAFETY CODE § 11351.5. Morales-Perez argued that under the
categorical approach set out by the Supreme Court in Taylor
v. United States, 495 U.S. 575 (1990), the California statute
is overbroad as he could have been convicted of the purchase
with intent to distribute rather than the possession with intent
to distribute. In other words, he argued that the “possession of
a controlled substance . . . with intent to manufacture, import,
export, distribute, or dispense,” see U.S.S.G. § 2L1.2 cmt.
n.1(B)(iv), does not include the purchase of cocaine base for
purposes of sale, see CAL. HEALTH & SAFETY CODE § 11351.5.
The district court rejected this argument, stating that “the
federal definition of drug trafficking offense is broad enough
to include the crime for which he was convicted . . . no matter
how you read the [California] statute.” Consequently, with a
three level reduction for acceptance of responsibility,
Morales-Perez’s total offense level was 21. He had a criminal
UNITED STATES v. MORALES-PEREZ 18461
history level of V and this placed him in the guideline range
of 70-87 months. The district court sentenced Morales-Perez
to 70 months imprisonment.
III
[1] To determine whether Morales-Perez’s prior conviction
qualifies as a drug trafficking offense, we apply the Taylor
categorical approach and “look only to the fact of conviction
and the statutory definition of the prior offense.” Taylor, 495
U.S. at 602. We must ask whether “the statute criminalizes
conduct that would not constitute a [drug trafficking offense]
under federal sentencing law.” United States v. Corona-
Sanchez, 291 F.3d 1201, 1203 (9th Cir. 2002) (en banc),
superseded on other grounds by U.S.S.G. § 2L1.2 cmt. n.2
(2002).
[2] Morales-Perez contends that the definition of a drug
trafficking offense reaches distribution and possession with
intent to distribute, but not the purchase for purposes of sale.
We disagree. The government indicted Morales-Perez for
unlawful reentry on March 10, 2004, and the district court
imposed the sentence on December 6, 2004. Therefore, the
district court applied the amended version of U.S.S.G.
§ 2L1.2, which makes it clear that, for federal sentencing pur-
poses, a “drug trafficking offense” also includes the crime of
attempt to commit a drug trafficking offense. See U.S.S.G.
§ 2L1.2 cmt. n.5 (“[Prior drug trafficking offenses] include
the offenses of aiding and abetting, conspiring, and attempt-
ing, to commit such offenses.”). Therefore, a predicate drug
trafficking offense includes not only possession with intent to
distribute, but attempted possession with intent to distribute.
[3] Whether Morales-Perez was in actual possession of the
cocaine base or had simply purchased the cocaine base with
the intent to distribute is not significant. Even if we assume
that there is a distinction between purchasing cocaine base
and possessing cocaine base, the simple fact remains that had
18462 UNITED STATES v. MORALES-PEREZ
Morales-Perez been prosecuted in federal court for the same
conduct which violated California law, he could have at least
been prosecuted for attempted possession with intent to dis-
tribute under 21 U.S.C. §§ 841(a)(1) and 846—an offense
explicitly included in the definition of “drug trafficking
offense” contained within the Sentencing Guidelines. See
U.S.S.G. § 2L1.2 cmt. n.5.
A federal conviction for the attempt to possess a controlled
substance with intent to distribute requires the government to
prove “(1) an intent to engage in criminal conduct, coupled
with (2) an overt act constituting a substantial step toward the
commission of the crime.” United States v. Davis, 960 F.2d
820, 826-27 (9th Cir. 1992). A conviction under the purchase
prong of section 11351.5 requires the State to prove that the
defendant (1) purchased the cocaine base and (2) had the
intent to distribute that cocaine base. CAL. HEALTH & SAFETY
CODE § 11351.5; see also Cal. Jury Instr. Crim. 12.01 (2004)
(stating the elements of the purchase prong to be (1) a pur-
chase of cocaine base from another and (2) the specific intent
to sell that cocaine base).
[4] By comparing the elements of these two crimes it
becomes clear that the federal crime of attempted possession
with intent to distribute encompasses the state-defined crime
of purchasing cocaine base for purposes of sale. The ability
to prove that a defendant has (1) made a completed purchase
of cocaine base and (2) had the specific intent to sell that
cocaine base is more than sufficient to prove that the defen-
dant intended to possess cocaine base with intent to distribute.
Cf. United States v. Yossunthorn, 167 F.3d 1267, 1269-70
(9th Cir. 1999) (stating that there was sufficient evidence to
prove that the defendant intended to possess heroin with
intent to distribute when he “expressed interest in purchasing
[heroin]” and the defendant conducted countersurveillance of
the prearranged meeting location in order to detect law
enforcement).
UNITED STATES v. MORALES-PEREZ 18463
[5] Furthermore, the completed purchase of cocaine base is
conduct sufficient to constitute a substantial step towards
acquiring or possessing the cocaine base. A conviction for the
attempted possession of a controlled substance with intent to
distribute requires more than the mere intent to complete the
crime. Id. at 1271. “Even when the defendant’s intent is clear,
his actions must cross the line between preparation and
attempt by unequivocally demonstrating that the crime will
take place unless interrupted by independent circumstances.”
Id. (internal quotation marks omitted). “The conduct cannot
be mere preparation, [rather it] must be a substantial step . . .
strongly corroborative of the firmness of a defendant’s crimi-
nal intent.” Id. (second alteration in original) (internal quota-
tion marks and citations omitted).
In Yossunthorn, we held that placing an order to purchase
heroin and countersurveillance of the prearranged meeting
location was not conduct sufficient to establish a substantial
step towards possession. We reasoned that countersurveil-
lance, or the securing of a location for some future drug pur-
chase, only constituted an “appreciable fragment of the crime
of drug possession with intent to distribute.” Id. at 1272
(internal quotation marks omitted). Furthermore, the act of
making an appointment with a known drug dealer was not a
substantial step because the “[defendant] had not ‘committed
all the steps necessary on his part to the completion of the
substantive offense.’ ” Id. (quoting United States v. Smith,
962 F.2d 923, 930-31 (9th Cir. 2002)). “While ‘[t]he govern-
ment does not have to wait until the transaction is complete[,]
. . . it needs more evidence of a substantial step.’ ” Id. at 1273
(alterations in original) (quoting United States v. Cea, 914
F.2d 881, 888 (7th Cir. 1990)).
[6] A conviction under section 11351.5 requires the State
to prove a completed transaction. The defendant has gone
beyond making arrangements for the purchase or securing a
location to make a purchase, he has actually gone to a location
and tendered the money to purchase the drugs. Therefore,
18464 UNITED STATES v. MORALES-PEREZ
because the purchase of a controlled substance for purposes
of sale constitutes a substantial step towards the possession of
a controlled substance with intent to distribute, we hold that
a conviction under section 11351.5 is also sufficient to estab-
lish the attempted possession of a controlled substance under
federal drug trafficking laws. Consequently, the district court
correctly determined that a conviction under section 11351.5
categorically qualifies as a drug trafficking offense under the
Sentencing Guidelines.
IV
Morales-Perez’s argument that the holding in Almendarez-
Torres, 523 U.S. 224, has been overruled by subsequent case
law has been foreclosed by our decision in United States v.
Quintana-Quintana, 383 F.3d 1052, 1053 (9th Cir. 2004)
(stating that the Supreme Court explicitly preserved its prior
holding in Almendarez-Torres in Blakely v. Washington, 542
U.S. 296 (2004)). Therefore, it still stands that “enhancements
based on prior convictions need not be proven beyond reason-
able doubt by a jury or admitted by the defendant to satisfy
the Sixth Amendment.” United States v. Esparza-Gonzalez,
422 F.3d 897, 907 (9th Cir. 2005).
V
We hold that the federal crime of attempted possession of
a controlled substance with intent to sell encompasses the
California-defined crime of purchasing cocaine base for pur-
poses of sale. Because this is an offense that falls within the
definition of a drug trafficking offense in the United States
Sentencing Guidelines, we hold that a conviction under Cali-
fornia Health and Safety Code section 11351.5 categorically
qualifies as a predicate drug trafficking offense under
U.S.S.G. § 2L1.2(b)(1)(A).
[7] However, because Morales-Perez objected to his sen-
tence on Sixth Amendment grounds before the district court,
UNITED STATES v. MORALES-PEREZ 18465
he preserved his challenge to the nonconstitutional Booker
error. See Beng-Salazar, 452 F.3d at 1095. Because we cannot
say that the error was harmless beyond a reasonable doubt, we
vacate the judgment and remand for full resentencing. See id.
at 1096-97.
AFFIRMED in part; VACATED and REMANDED for
resentencing.