Opinion
No. 2:14-CR-0038-JLQ
05-21-2014
UNITED STATES OF AMERICA, Plaintiff, v. SERGIO MARROQUIN-TORRES, Defendant.
MEMORANDUM OPINION RE: SENTENCING GUIDELINE CALCULATION
On May 16, 2014, the Defendant was sentenced pursuant to his Fast Track plea to illegal reentry as an alien into the United States after deportation in violation of 8 U.S.C. § 1326. This Memorandum Opinion explains the court's United States Sentencing Guideline calculation and rejection of the recommended 8-level enhancement contained in the abbreviated Presentence Investigation Report at ¶ 6. (ECF No. 22).
The court notes that this issue was not briefed by either party. The Government has the burden to establish whether a prior conviction may be used for a sentencing enhancement. (ECF No. 25 at 2). An uncontested PSR (as the Government's Fast Track policy apparently requires) is not always sufficient evidence. Reina-Rodriguez v. U.S., 655 F.3d 1182 (9th Cir. 2011)("it is inappropriate to use a presentence report 'to determine the type or character of the conviction.'").
U.S.S.G. § 2L1.2(b)(1)(C) requires an eight-level increase in the base offense level of a defendant who unlawfully reenters the United States after a previous removal following "a conviction for an aggravated felony." Here, "aggravated felony" has the meaning assigned in 8 U.S.C. § 1101(a)(43). USSG § 2L1.2, Comment n.3(A). Section 1101(a)(43) defines an aggravated felony as, among other things, "illicit trafficking in a controlled substance (as defined in [21 U.S.C. § 802] ), including a drug trafficking crime (as defined in [18 U.S.C. § 924(c) ] )." 8 U.S.C. § 1101(a)(43)(B). Section 924(c) defines a "drug trafficking crime" as any felony punishable under the Controlled Substances Act ("CSA"). 18 U.S.C. § 924(c)(2). For a state conviction to qualify as a "felony punishable under the Controlled Substances Act": "First, the offense must be a felony; second, the offense must be capable of punishment under the [CSA]." Lopez v. Gonzales, 549 U.S. 47, 61 (2006) (THOMAS, J., dissenting). The federal Controlled Substances Act makes it a felony to knowingly or intentionally "manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense," any amount of marijuana, except that "distributing a small amount of marihuana for no remuneration" is a misdemeanor. 21 U.S.C. § 841(a), (b)(1)(D), (b)(4). A state marijuana conviction is therefore only equivalent to a federal drug felony if the offense involved payment or distribution of more than a small amount of marijuana.
The Ninth Circuit has employed the categorical approach set forth in Taylor v. United States, 495 U.S. 575, 601-02 (1990) to determine whether a criminal defendant's prior conviction meets the definition of an aggravated felony. U.S. v. Valdavinos-Torres, 704 F.3d 679 (9th Cir. 2012); see also Moncrieffe v. Holder (employing a categorical approach in the immigration context to determine whether a state offense proscribes conduct punishable as a felony under the Controlled Substances Act).
Under the categorical approach, the court must confine its consideration to only the fact of conviction and the statutory definition of the offense. The court must not "look not to the facts of the particular prior case, but instead to whether the state statute defining the crime of conviction categorically fits within the generic federal definition of a corresponding aggravated felony." Moncrieffe, 133 S.Ct. 1678 (2013). In 2011, the Defendant was convicted of violating of California Health and Safety Code § 11360(a). Section 11360(a) provides:
Except as otherwise provided by this section or as authorized by law, every person who transports, imports into this state, sells, furnishes, administers, or gives away, or offers to transport, import into this state, sell, furnish, administer, or give away, or attempts to import into this state or transport any marijuana shall be punished by imprisonment in the state prison for a period of two, three or four years.Subsection (b) of the statute makes it a misdemeanor if the person "gives away, offers to give away, transports, offers to transport, or attempts to transport not more than 28.5 grams of marijuana." The Ninth Circuit has already held that a conviction under § 11360(a) is not categorically a drug trafficking crime as defined in 18 U.S.C. § 924(c)(2) because "the Controlled Substances Act neither mentions solicitation nor contains any broad catch-all provision that could even arguably be read to cover solicitation." See United States v. Rivera-Sanchez, 247 F.3d 905, 909 (9th Cir. 2001)(en banc); see also, Ramirez-Chavez v. Holder, 540 Fed. Appx. 651, 652 (9th Cir.2013)(unpublished)(holding that a Nevada law criminalizing the sale, manufacture, delivery, or possession of a controlled substance "is not categorically an aggravated felony... because the full range of conduct it criminalizes, including mere possession, is broader than the relevant federal statute.").
Under the modified categorical approach, the court may expand its inquiry beyond the fact of conviction when the statute of conviction is one "list[ing] multiple, alternative elements, and so effectively creates 'several different...crimes,'" and "at least one, but not all of those crimes matches the generic version." Descamps v. United States, 133 S.Ct. 2276 (2013). Section 11360(a) is divisible, as it criminalizes various discrete acts (e.g., sale, importation, transportation, etc) "alternatively, with one statutory phrase corresponding to the generic crime and another not." Descamps, 133 S.Ct. at 2286. See e.g., U.S. v. Corono-Rivera, 503 Fed.Appx. 500, 502 (9th Cir. 2012), cert denied 133 S.Ct. 2040 (2013)(upholding the district court's conclusion under the modified categorical approach that the Defendant's conviction for felony sale of marijuana in violation § 11360(a) qualified as a drug trafficking offense).
The modified categorical approach serves the "limited function" of helping the court determine "which of a statute's alternative elements formed the basis of the defendant's prior conviction." Descamps v. United States, 133 S.Ct. 2276, 2284 (2013). Here, Count 2 of the state charging document to which the Defendant pleaded guilty (as confirmed by the Abstract of Judgment)(attached) establishes the Defendant pleaded guilty to felony transportation of marijuana. See Cabantac v. Holder, 736 F.3d 787, 79394 (9th Cir. 2013) (per curiam)("where, as here, the abstract of judgment or minute order specifies that a defendant pleaded guilty to a particular count of the criminal complaint or indictment, we can consider the facts alleged in that count."). The elements of felony transportation of marijuana under § 11360(a) are: 1) the defendant transported marijuana; 2) the defendant knew of its presence and illegal character; and 3) the marijuana possessed weighed more than 28.5 grams. See Judicial Council of CA Crim Jury Instr. No. 2361; Ca Crim. Jury Instruction 12.22.5; People v. Busch, 187 Cal.App.4th 150, 113 (Cal.App.3d Dist.2010)(upholding CALCRIM No. 2361). "Transport" is defined as it is "commonly understood and of plain, nontechnical meaning" and is established by carrying or movement from one location to another. People v. Eastman, 13 Cal.App.4th 668, 674-77 (2007) . A conviction under § 11360(a) can be supported by transportation without possession or transportation for personal use. U.S. v. Casarez-Bravo, 181 F.3d 1074 (9th Cir. 1999)(discussing § 11360(a)).
The mere transportation of marijuana, without more, is not listed as a punishable offense anywhere in the Controlled Substances Act. See Alvarado-Ochoa v. Ashcroft, 2003 WL 21805239, at * 1 (9th Cir. Aug.6, 2003)(unpublished) ("While Alvarado's state transportation [of cocaine] is a felony in California ... it is not punishable under the Controlled Substances Act...."). The elements of the offense of felony transportation of marijuana under § 11360(a) do not have an illicit trafficking nor a remuneration element.
The "elements-centric, 'formal categorical approach'" precludes this court from delving into the particular facts disclosed by the record of conviction other than to determine "which statutory phrase was the basis for the conviction." See Descamps, 133 S.Ct. at 2284-86 ("Whether Descamps did break and enter makes no difference," because "[o]ur decisions authorize review of the plea colloquy or other approved extra-statutory documents only when a statute defines burglary not (as here) overbroadly, but instead alternatively, with one statutory phrase corresponding to the generic crime and another not."). Because the statutory phrase the Defendant was convicted of was mere transportation, Defendant's conviction under California Health and Safety Code § 11360(a) does not qualify as an aggravated felony.
The Clerk of the court shall enter this Order and provide copies to counsel and the U.S. Probation Office.
Dated this 21st day of May, 2014.
s/ Justin L. Quackenbush
JUSTIN L. QUACKENBUSH
SENIOR UNITED STATES DISTRICT JUDGE
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