Appeal from the United States District Court for the Western District of Texas.
For UNITED STATES OF AMERICA, Plaintiff - Appellee: Joseph H. Gay, Jr., Assistant U.S. Attorney, Mara Asya Blatt, Esq., Assistant U.S. Attorney, Assistant U.S. Attorney, U.S. Attorney's Office, Western District of Texas, San Antonio, TX.
For JOSE ANTONIO SARABIA-MARTINEZ, Defendant - Appellant: Bradford W. Bogan, Assistant Federal Public Defender, Federal Public Defender's Office, Western District of Texas, San Antonio, TX; Maureen Scott Franco, Federal Public Defender, Federal Public Defender's Office, Western District of Texas, San Antonio, TX.
Before REAVLEY, JONES, and ELROD, Circuit Judges.
REAVLEY, Circuit Judge
Jose Antonio Sarabia-Martinez pleaded guilty to the federal offense of illegally reentering the United States after having been removed. His sentence was enhanced pursuant to guideline § 2L1.2 based on a previous " drug trafficking offense" conviction. The district court based the enhancement solely on information in a pre-sentencing report (" PSR" ). Sarabia-Martinez did not object to the 16-level enhancement and was sentenced within the guideline range to 50 months' imprisonment and three years of supervised release.
On appeal, Sarabia-Martinez argues the district court plainly erred by treating his prior " Trafficking in Methamphetamine 14 Grams or More" conviction
as a " drug trafficking offense" for purposes of the sentencing guidelines. We hold that conviction under the Florida drug trafficking statute does not categorically constitute a drug trafficking conviction for purposes of the sentencing guidelines. We further hold the district court plainly erred by relying on the PSR in applying the sentence enhancement. Because the error affected Sarabia-Martinez's substantial rights, we vacate the sentence and remand for resentencing.
To classify a prior offense for purposes of applying a sentence enhancement, courts must look to the elements of the statutory violation rather than to the underlying facts of the prior conviction. United States v. Garza-Lopez, 410 F.3d 268, 273 (5th Cir. 2005). When applying this " categorical approach," if a statutory violation " encompasses activity that does not fall within the definition of 'drug trafficking offense' under [guideline] § 2L1.2," the conviction cannot be the basis of a " drug trafficking offense" enhancement. Id. at 274.
The government argues that Florida Stat. Ann. § 893.135(1)(f) (the statute under which Sarabia-Martinez was previously convicted) encompasses only activity that falls within the guidelines' " drug trafficking offense" definition, meaning a conviction under the statute necessarily means the enhancement applies. The Florida statute reads in pertinent part:
Any person who knowingly sells, purchases, manufactures, delivers, or brings into this state, or who is knowingly in actual or constructive possession of, 14 grams or more of amphetamine, as described [elsewhere in the code], or methamphetamine, as described [elsewhere in the code], or of any mixture containing amphetamine or methamphetamine, or phenylacetone, phenylacetic acid, pseudoephedrine, or ephedrine in conjunction with other chemicals and equipment utilized in the manufacture of amphetamine or methamphetamine, commits a felony of the first degree, which felony shall be known as " trafficking in amphetamine" . . . .
The statute thus defines mere possession as a form of " trafficking" provided the defendants possess a sufficient quantity. Cf. Greenwade v. State, 124 So.3d 215, 220 (Fla. 2013) (explaining that violation of the analogous cocaine trafficking statute can be proven by possession alone provided " the quantity of the substance met the statutory weight threshold" ). The design apparently manifests the Florida legislature's judgment that intent to ...