United States v. Arturo Gonzalez-Navarro

Case: 16-50310 Document: 00513943524 Page: 1 Date Filed: 04/07/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fif h Circuit
No. 16-50310 FILED
April 7, 2017
Lyle W. Cayce
UNITED STATES OF AMERICA, Clerk
Plaintiff - Appellee
v.
ARTURO GONZALEZ-NAVARRO,
Defendant - Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:15-CR-2068
Before HIGGINBOTHAM, PRADO, and HAYNES, Circuit Judges.
PER CURIAM:*
Arturo Gonzalez-Navarro (“Gonzalez-Navarro”) pleaded guilty to being
an alien found in the United States after having been previously removed.
Because he was previously removed subsequent to his 2005 felony California
conviction for Manufacture of Controlled Substance/ Methamphetamine, the
probation officer applied a 16-level adjustment pursuant to § 2L1.2(b)(1)(A)(i)
of the Sentencing Guidelines. With a criminal history category of IV and this
adjustment, his guidelines range was 57-71 months. Although Gonzalez-
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
Case: 16-50310 Document: 00513943524 Page: 2 Date Filed: 04/07/2017
No. 16-50310
Navarro did not object to the presentence report (PSR) in the district court, he
now appeals his sentence, contending that the adjustment was error. 1 We
VACATE the sentence 2 and remand for resentencing.
On appeal, Gonzalez-Navarro and the Government agree that the
district court committed reversible plain error by applying the 16-level
adjustment under § 2L1.2(b)(1)(A)(i) based on Gonzalez-Navarro’s 2005
California conviction for manufacture of a controlled substance. Gonzalez-
Navarro concedes that this argument was not raised below and, therefore, that
it is reviewed for plain error only. See United States v. Magwood, 445 F.3d
826, 828 (5th Cir. 2006). To succeed under that standard, Gonzalez-Navarro
must show an error that is clear or obvious and that affects his substantial
rights, but even so, this court will exercise its discretion to correct any error
only if it “seriously affect[s] the fairness, integrity, or public reputation of
judicial proceedings.” Puckett v. United States, 556 U.S. 129, 135 (2009)
(internal quotation marks and citation omitted).
At the time of Gonzalez-Navarro’s sentencing, § 2L1.2(b)(1)(A)(i) stated
that a 16-level adjustment applies to a defendant’s offense level if he was
previously removed after a felony conviction for a drug trafficking offense for
which the sentence exceeded 13 months if the conviction receives criminal
history points. The commentary to § 2L1.2 defined “drug trafficking offense”
as a crime under federal, state, or local law barring “the manufacture, import,
export, distribution, or dispensing of, or offer to sell a controlled substance . . .
1 The base offense level was 8; Gonzalez-Navarro also received a two-level decrease
for acceptance of responsibility plus the additional one-level reduction upon the
Government’s motion. The 16-level adjustment at issue was the only other adjustment,
netting an offense level of 21.
2 Gonzalez-Navarro did not appeal his conviction, and it is affirmed. He did not
appeal the revocation of his supervised release under Cause No. 2:11-CR-67 or the
corresponding sentence imposed, so we do not address those matters.
2
Case: 16-50310 Document: 00513943524 Page: 3 Date Filed: 04/07/2017
No. 16-50310
or the possession of a controlled substance . . . with intent to manufacture,
import, export, distribute, or dispense.” § 2L1.2, comment. (n.1(B)(iv)).
Here, the district court applied the 16-level adjustment under
§ 2L1.2(b)(1)(A)(i) based on Gonzalez-Navarro’s 2005 conviction under
California Health and Safety Code § 11379.6(a). That statute criminalizes
“every person who manufactures, compounds, converts, produces, derives,
processes, or prepares, either directly or indirectly by chemical extraction or
independently by means of chemical synthesis, any controlled substance
specified in [various subsections].” CAL. HEALTH & SAFETY CODE § 11379.6(a)
(West 2005). In pronouncing sentence, the district court rejected a request for
a downward variance by noting that this case was not “outside the heartland.”
The relevant documents show that Gonzalez-Navarro was convicted of
the manufacturing charge, for which he received a five-year sentence. Under
Mathis v. United States, 136 S. Ct. 2243, 2247-48, 2256-57 (2016), which
requires examination of only the “elements” of a crime, not the “means” by
which it was committed and United States v. Reyes-Mendoza, 665 F.3d 165,
166 (5th Cir. 2011), which held that “manufacturing” under the California
statute at issue did not constitute a “drug trafficking offense,” this conviction
did not qualify for the enhancement. See also United States v. Hinkle, 832 F.3d
569, 574-75 (5th Cir. 2016) (holding that Mathis controls the application of the
modified categorical approach to the Guidelines). Under Reyes-Mendoza, the
district court therefore committed clear or obvious error by applying the
§ 2L1.2(b)(1)(A)(i) adjustment based on Gonzalez-Navarro’s prior conviction for
manufacturing a controlled substance in violation of § 11379.6(a). See United
States v. Fields, 777 F.3d 799, 802 (5th Cir. 2015) (holding that, when
determining if an error is clear or obvious, this court looks to the state of the
law at the time of appeal, whether controlling precedent has reached the issue
in question, or whether the legal question is subject to reasonable dispute).
3
Case: 16-50310 Document: 00513943524 Page: 4 Date Filed: 04/07/2017
No. 16-50310
We conclude that the error affected Gonzalez-Navarro’s substantial
rights in that his guidelines range without the error would have been lower
and likely would have been no higher than 24-30 months because the relevant
enhancement probably would have been no more than eight levels. 3 When a
defendant shows that the district court mistakenly used an incorrect, higher
Guidelines range, he has demonstrated a reasonable probability of a different
outcome. See Molina-Martinez v. United States, 136 S. Ct. 1338, 1346 (2016).
“Absent unusual circumstances, he will not be required to show more.” Id. at
1347. Because no unusual circumstances exist in this case, Gonzalez-Navarro
has met his burden of showing that the district court’s error affected his
substantial rights. See id.
There remains the issue of whether we should exercise our discretion to
correct this error. United States v. Escalante-Reyes, 689 F.3d 415, 425 (5th Cir.
2012)(en banc)(“[W]e do not view the fourth prong as automatic if the other
three prongs are met.”) Given the totality of the record in this case, we
conclude that we should. Id. at 426
Gonzalez-Navarro’s sentence is VACATED, and the case is REMANDED
for a resentencing.
3 Gonzalez-Navarro’s other convictions do not support the 16-level enhancement.
Once we have determined that the correct guidelines range would be substantially lower than
the one applied, we do not need to decide the issue of the precise level of the appropriate
adjustment for the prior convictions and leave that determination to the district court on
remand.
4