United States v. Pedro Vasquez Cavazos, Jr.

RECOMMENDED FOR PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 20a0044p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA, ┐

Plaintiff-Appellee, │

│

> Nos. 19-5141/5186

v. │

│

│

PEDRO VASQUEZ CAVAZOS, JR. (19-5141); │

CHRISTOPHER LEE SERRANO (19-5186), │

Defendants-Appellants. │

┘

Appeal from the United States District Court

for the Eastern District of Kentucky at London.

No. 6:18-cr-00012—Robert E. Wier, District Judge.

Decided and Filed: February 12, 2020

Before: BATCHELDER, STRANCH, and NALBANDIAN, Circuit Judges.

_________________

COUNSEL

ON BRIEF: Andrew M. Stephens, Lexington, Kentucky, for Appellant in 19-5141. Renée

Paradis, Brooklyn, New York, for Appellant in 19-5186. Charles P. Wisdom, Jr., Kyle M.

Melloan, UNITED STATES ATTORNEY’S OFFICE, Lexington, Kentucky, for Appellee.

_________________

OPINION

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NALBANDIAN, Circuit Judge. After pleading guilty to controlled substance offenses,

Pedro Cavazos and Christopher Serrano both received sentencing enhancements because of prior

controlled substance convictions. They argue on appeal that the district court improperly applied

these enhancements. We agree that Serrano does not qualify as a career offender so we

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VACATE his sentence and REMAND for resentencing. But the court properly applied

Cavazos’s enhancement so we AFFIRM his sentence.

I.

In 2017, Cavazos and Serrano transported cocaine from Texas to Kentucky at the request

of undercover FBI officers. Based on this conduct, both Cavazos and Serrano pleaded guilty to a

single count of conspiracy to distribute 500 grams or more of cocaine, in violation of 21 U.S.C.

§§ 841(a)(1), 846. The United States gave notice to both defendants that 21 U.S.C.

§ 841(b)(1)(B) subjected them to enhanced statutory punishments because of prior felony drug

convictions. Cavazos objected, both orally at his re-arraignment and through a written motion

prepared by counsel, to basing the enhancement on his 2004 federal conviction for possession

with intent to distribute methamphetamine, arguing that it violated the Fifth Amendment’s

Double Jeopardy Clause. The district court denied Cavazos’s objection, finding that Cavazos

failed to satisfy his burden of establishing the unconstitutionality of his prior conviction. And

even if he had, the court held, the dual sovereignty exception would permit federal prosecution,

and Cavazos violated 21 U.S.C. § 851(e)’s five-year limitations period. Serrano orally affirmed

his prior conviction. So the district court applied the statutory enhancement to both defendants,

resulting in a penalty for each of them of ten years to life. See 21 U.S.C. § 841(b)(1)(B).

Neither defendant objected to his presentence report. So at Cavazos’s sentencing, the

district court calculated a guidelines range of eighty-four to 105 months. The statutory minimum

enhanced the Guidelines recommendation to 120 months, and the court imposed that sentence.

At Serrano’s sentencing, the district court increased Serrano’s offense level to thirty-seven—the

mandatory offense level for career offenders guilty of a crime that carries a statutory maximum

term of life imprisonment. The court did so because it determined that Serrano’s prior federal

conviction for conspiracy to possess with intent to deliver cocaine and prior Texas conviction for

possession of a controlled substance with intent to deliver qualified as predicate offenses under

USSG § 4B1.2. After a three-level reduction for acceptance of responsibility, the district court

calculated Serrano’s guidelines range to be 262 to 327 months and sentenced Serrano to 262

months. This appeal follows.

Nos. 19-5141/5186 United States v. Cavazos, et al. Page 3

II.

Cavazos’s confusing appellate brief raises only one argument: that the government

obtained the prior conviction used to trigger 21 U.S.C. § 841(b)(1)(B)’s enhanced statutory

penalty in violation of the Double Jeopardy Clause. The district court correctly noted both that

the dual-sovereignty doctrine likely renders Cavazos’s prior conviction constitutionally

permissible, see Gamble v. United States, 139 S. Ct. 1960, 1979–80 (2019), and that Cavazos

likely failed to satisfy his burden of establishing the unconstitutionality of his prior conviction.

But what proves dispositive here is 21 U.S.C. § 851(e). That section prevents any challenge to a

prior conviction used to enhance the statutory penalty under § 841(b)(1)(B) when five years have

elapsed between the prior conviction and “the information alleging such prior conviction.”

§ 851(e). The government first notified Cavazos that his prior conviction subjected him to an

enhanced statutory punishment on June 1, 2018. And the Western District of Texas entered

judgment against Cavazos for his prior possession with intent to distribute methamphetamine

conviction on December 3, 2004. So almost fourteen years passed between the two. Thus,

§ 851(e) prevents Cavazos from challenging the constitutionality of his prior conviction

regarding his enhanced sentence. Cavazos argues that he cannot waive his constitutional

challenge. But that is not true. As we said in United States v. Reed, “Congress could choose to

eliminate all collateral attacks on prior convictions with regard to sentence enhancement, save

for the limited circumstance in which the prior conviction was obtained in violation of the right

to have counsel appointed.” 141 F.3d 644, 652 (6th Cir. 1998) (citing Custis v. United States,

511 U.S. 485, 491–97 (1994)). Because that narrow exception does not apply here, Congress’s

restriction on Cavazos’s ability to challenge his prior conviction’s use in enhancing his sentence

is valid. So we affirm Cavazos’s sentence.

III.

Serrano appeals only his classification as a career offender. He concedes that his

conviction here and his prior federal conviction qualify as “controlled substance offenses” under

USSG § 4B1.2. It is his prior Texas conviction for possession of a controlled substance with

intent to deliver that he claims is outside that section’s definition of “controlled substance

offense.” If the district court had not classified Serrano’s Texas conviction as a predicate offense

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under § 4B1.2, Serrano’s offense level would have been nine levels lower and his Guidelines

range would have been less than half of the range the court used to sentence Serrano. “A district

court’s failure to properly calculate the advisory Guidelines range is a ‘significant procedural

error.’” United States v. Fuller-Ragland, 931 F.3d 456, 459 (6th Cir. 2019) (quoting Gall v.

United States, 552 U.S. 38, 51 (2007)). So Serrano is effectively challenging the procedural

reasonableness of his sentence. Because Serrano objects to the calculation of his Guidelines

range for the first time on appeal, we review only for plain error. See id; Fed. R. Crim. P. 52(b).

In other words, we may reverse only if Serrano can show “(1) error (2) that ‘was obvious or

clear,’ (3) that ‘affected defendant’s substantial rights’ and (4) that ‘affected the fairness,

integrity, or public reputation of the judicial proceedings.’” United States v. Vonner, 516 F.3d

382, 386 (6th Cir. 2008) (quoting United States v. Gardiner, 463 F.3d 445, 459 (6th Cir. 2006)).

The Supreme Court has resolved the third and fourth prongs of that inquiry for us.

In Molina-Martinez v. United States, the Court held that improper calculation of the Guidelines

range is a “significant procedural error” that usually affects a defendant’s substantial rights.

136 S. Ct. 1338, 1345–46 (2016). It reserved judgment in cases where there is evidence that the

sentencing court would have imposed the sentence it chose regardless of the Guidelines range.

Id. at 1346–47. But here, as in Molina-Martinez, “the record is silent as to what the district court

might have done had it considered the correct Guidelines range,” so “the court’s reliance on an

incorrect range . . . suffice[s] to show an effect on the defendant’s substantial rights.” Id. at

1347.1 And in Rosales-Mireles v. United States, the Supreme Court held that “[t]he risk of

unnecessary deprivation of liberty particularly undermines the fairness, integrity, or public

reputation of judicial proceedings in the context of a plain Guidelines error[.]” 138 S. Ct. 1897,

1908 (2018). So we are left to determine only whether the district court’s classification of

Serrano as a career offender was an obvious or clear error.

For offenses that carry a maximum statutory penalty of life—such as 21 U.S.C.

§ 841(b)(1)(B) when enhanced—USSG § 4B1.1 imposes a mandatory offense level of thirty-

1And in fact, the sentencing judge suggested that the Guidelines were the primary factor he used to select a

sentence. (See R. 143, Serrano Sentencing Tr. at PageID #745 (“I do think it’s a guideline scenario. . . . And so I

think the guidelines appropriately capture the factors and purposes of sentencing in this case. And so I am going to

stay within the guidelines.”))

Nos. 19-5141/5186 United States v. Cavazos, et al. Page 5

seven for adult defendants that commit a controlled substance offense and have “at least two

prior felony convictions of either a crime of violence or a controlled substance offense.”

The term “controlled substance offense” means an offense under federal or state

law, punishable by imprisonment for a term exceeding one year, that prohibits the

manufacture, import, export, distribution, 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.

USSG § 4B1.2(b). Serrano concedes that his conviction here and his prior federal conviction

satisfy this definition. (Serrano Br. at 6.) At issue is whether the district court committed an

obvious or clear error in determining that Serrano’s Texas conviction for possession of a

controlled substance with intent to deliver, in violation of Texas Health & Safety Code

§ 481.112, is a “controlled substance offense” under USSG § 4B1.2.

In determining whether a state criminal conviction qualifies as a “controlled substance

offense,” we must determine whether the elements of the offense require that the defendant

engage in the conduct defined in USSG § 4B1.2. Taylor v. United States, 495 U.S. 575, 600

(1990); United States v. Eason, 919 F.3d 385, 388 (6th Cir. 2019). This categorical inquiry

means we look only to the elements of the offense set forth in the statute itself, rather than the

particular facts of the defendant’s case. Taylor, 495 U.S. at 602; Eason, 919 F.3d at 388.

But when a statute is divisible—i.e., it “sets out one or more elements of the offense in the

alternative”—we apply a modified categorical approach, looking to a “limited class of

documents, such as indictments and jury instructions, to determine which alternative formed the

basis of the defendant’s prior conviction.” Descamps v. United States, 570 U.S. 254, 257 (2013).

When state courts definitively answer whether a statute is divisible, we “need only follow

what [they] say[].” Mathis v. United States, 136 S. Ct. 2243, 2256 (2016). And the Texas Court

of Criminal Appeals has done just that with § 481.112. In Lopez v. State, that Court held that

“there are at least five ways to commit an offense under Section 481.112” but all of these are just

“several different means for committing the offense of delivery of a single quantity of drugs so

that, no matter where along the line of actual delivery . . . the drug dealer may be held

accountable[.]” 108 S.W.3d 293, 297, 299–300 (Tex. 2003) (emphasis added). So § 481.112 is

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not divisible. See Mathis, 136 S. Ct. at 2254–56 (explaining that a statute must set out

alternative elements rather than alternative means of fulfilling those elements to qualify as

divisible). The Fifth Circuit reached the same conclusion in United States v. Tanksley, 848 F.3d

347, 352 (5th Cir. 2017) (“The means or elements question has been directly answered by the

Texas court.”), supplemented, 854 F.3d 284 (5th Cir. 2017), and we normally defer to other

federal courts of appeals for interpretation of the laws of the states within their boundaries. See

Curtis 1000, Inc. v. Martin, 197 F. App’x 412, 422 n.4 (6th Cir. 2006). Thus, we must apply the

categorical approach.2

At the time of Serrano’s conviction, § 481.112 made it a crime to “knowingly

manufacture[], deliver[], or possess[] with intent to deliver a controlled substance[.]” Tex.

Health & Safety Code § 481.112 (2004) (amended 2009). And Texas law also included

“offering to sell a controlled substance” within the definition of “deliver.” Tex. Health & Safety

Code § 481.002(8) (2004) (amended 2013). Serrano argues that inclusion of offers to sell

controlled substances makes § 481.112 “too broad to categorically qualify” as a controlled

substance offense because § 4B1.2 does not include that conduct. (Serrano Br. at 8–9.)

He claims that we should defer to the Fifth Circuit, which has found as much, because “[t]he

question of whether a particular state court offense is a predicate offense is primarily one of state

law.” (Serrano Br. at 11.)

In United States v. Hill, the Fifth Circuit found plain error in a district court’s career

offender classification based on a § 481.112 conviction. 716 F. App’x 327, 329–31 (5th Cir.

2018) (per curiam). That holding was required by Tanksley, discussed above, where the Fifth

Circuit held that § 481.112 is indivisible. 848 F.3d at 352. Tanksley also extended United States

v. Gonzales, where the Fifth Circuit held that delivery of a controlled substance under § 481.112

includes conduct beyond what the Federal Sentencing Guidelines’ definition of “drug trafficking

offense” includes. Id. at 351 (citing 484 F.3d 712, 714 (5th Cir. 2007) (per curiam)).

2While we defer to the Fifth Circuit and Texas courts on the divisibility of § 481.112, we express no

opinion on the question. Especially because only Serrano’s briefing addresses divisibility. See Koubriti v.

Convertino, 593 F.3d 459, 471 (6th Cir. 2010) (holding that it is improper to reach the merits of questions not

developed in the lower court record or briefed by the parties); United States v. Blackie, 548 F.3d 395, 404 (6th Cir.

2008) (Sutton, J., concurring) (“Before taking sides on how to approach this question, I would prefer to wait until

the issue has been raised by the parties, it has been briefed and it makes a difference to the outcome of the case.”).

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Finding “no substantive difference between a ‘controlled substance offense’ and a ‘drug

trafficking offense’ under the Guidelines,” the Tanksley court held that Gonzales controlled, and

the indivisible § 481.112 is too broad to categorically qualify as a “controlled substance offense.”

Id at 351–52.

Again, we normally defer to a federal Court of Appeals’ analysis of state law within its

circuit. See Curtis 1000, Inc., 197 F. App’x at 422 n.4. But the substance of Texas law isn’t in

dispute here. The question is whether the federal sentencing guidelines include conduct that

Texas undisputedly criminalizes. We retain our full authority to interpret the Guidelines. And

we need not look to the Fifth Circuit when binding precedent from our own Circuit answers the

question.

When the district court sentenced Serrano, the court was clearly correct in finding that

§ 4B1.2’s definition of controlled substance offenses included offers to sell controlled

substances. That’s because we said as much in United States v. Evans. 699 F.3d 858, 868 (6th

Cir. 2012). There, we determined that “an offer to sell is properly considered an attempt to

transfer a controlled substance[.]” Id. at 867. And because the application notes to § 4B1.2 tell

us that the definition of “controlled substance offenses” includes attempt crimes, statutes that

criminalize offers to sell controlled substances qualify as predicate offenses under § 4B1.1. Id. at

867–68. But after the district court sentenced Serrano, and before this appeal, we decided United

States v. Havis. 927 F.3d 382 (6th Cir. 2019) (en banc). In Havis, we rejected the second

analytical step in Evans. Application notes must be “‘interpretations of, not additions to, the

Guidelines[.]’” Id. at 386 (quoting United States v. Rollins, 836 F.3d 737, 742 (7th Cir. 2016)

(en banc)). Because the text of § 4B1.2 never mentions attempt crimes, the application note’s

inclusion of attempt crimes in the definition of predicate “controlled substance offenses” is an

impermissible “addition to” the Guidelines. Id. at 386–87. So statutes that include attempted

delivery of controlled substances are too broad to categorically qualify as “controlled substance

offenses” under § 4B1.2. Id. at 387.

Havis did not discuss offers to sell controlled substances and therefore did not overrule

Evans’s holding that “an offer to sell is properly considered an attempt to transfer a controlled

substance[.]” 699 F.3d at 867; see Bryan A. Garner et al., The Law of Judicial Precedent 308

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(2016) (“[A] decision that a court has ‘overruled in part’ or ‘reversed in part’ maintains

precedential value to the extent that the earlier opinion doesn’t conflict with the overruling or

reversing opinion.”). See also United States v. Johnson, 933 F.3d 540, 544 (6th Cir. 2019)

(noting in a different context that Havis’s abrogation of Evans was limited). And Havis made

clear that § 4B1.2’s definition of “controlled substance offenses” does not include attempt

crimes. 927 F.3d at 387. Thus, statutes that criminalize offers to sell controlled substances are

too broad to categorically qualify as predicate “controlled substance offenses.” As the law

stands today, it is clear or obvious error to find § 481.112 categorically qualifies as a “controlled

substance offense” under § 4B1.2.3

Despite the language of the plain error standard—which suggests that the error must have

been clear or obvious at the time of the district court’s ruling—the Supreme Court has instructed

that in situations like this, “where the law at the time of trial was settled and clearly contrary to

the law at the time of appeal[,] it is enough that an error be ‘plain’ at the time of appellate

consideration.” Johnson v. United States, 520 U.S. 461, 468 (1997). Because it would be clear

or obvious error today for the district court to enhance Serrano’s offense level under § 4B1.1

based on a predicate conviction under § 481.112, we find the first two elements of the plain error

standard satisfied. With all four of the plain error elements satisfied, we vacate Serrano’s

sentence and remand for resentencing.

IV.

For these reasons, we AFFIRM Cavazos’s sentence, VACATE Serrano’s sentence, and

REMAND for resentencing consistent with this opinion.

3True, there is no binding case law from this circuit that has found § 481.112 too broad to categorically

qualify as a predicate controlled substance offense. But binding case law need not address the same statute for the

district court’s interpretation of that statute to be plain error. See United States v. Powell, 781 F. App’x 487, 489–90

(6th Cir. 2019) (relying on Havis, which involved a predicate Tennessee controlled substance conviction, to vacate a

career offender sentence based on an Ohio controlled substance conviction). Rather, binding case law must clearly

answer the question presented. United States v. Al-Maliki, 787 F.3d 784, 794 (2015) (citing United States v. Olano,

507 U.S. 725, 734 (1993); United States v. Woodruff, 735 F.3d 445, 450 (6th Cir. 2013)). The question presented

here is whether a statute that criminalizes offers to sell controlled substances is too broad to categorically qualify as

a predicate controlled substance offense under § 4B1.2. And taken together, Havis and what’s left of Evans clearly

answer that question in the affirmative.