United States v. Henao-Melo

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT United States Court of Appeals

Fifth Circuit

FILED

December 22, 2009

No. 08-41313

Charles R. Fulbruge III

Clerk

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ARMANDO HENAO-MELO,

Defendant-Appellant.

Appeal from the United States District Court

for the Southern District of Texas

No. 7:08-CR-1260-ALL

Before JONES, Chief Judge, SMITH and DeMOSS, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Armando Henao-Melo pleaded guilty to being found unlawfully in the

United States following deportation. The district court enhanced the sentence

under the drug trafficking offense provision in U.S.S.G. § 2L1.2(b)(1)(A)(i) based

on a previous conviction for use of a telephone to facilitate the commission of a

narcotics offense, 21 U.S.C. § 843(b). Henao-Melo contends, in relevant part,

No. 08-41313

that the court erred in applying the drug trafficking enhancement, because the

government failed to provide sufficient documentation to establish that the par-

ticular narcotics offense he facilitated was a drug trafficking offense. We agree.

Nevertheless, because the error was not plain, we affirm.

I.

The presentence report (“PSR”) assessed a base offense level of 8, which

the court increased under § 2L1.2(b)(1)(A)(i), which provides a 16-level increase

for a prior felony conviction of drug trafficking for which the sentence imposed

exceeded 13 months.1 After a two-level reduction for acceptance of responsibili-

ty, the offense level was 22. That score, combined with the criminal history cate-

gory of II, resulted in a guideline imprisonment range of 41 to 51 months.

Henao-Melo filed several objections. In relevant part, he argued that the

government had failed to produce sufficient evidence to establish the prior con-

viction used as the basis for the enhancement. In the event the government pro-

duced such evidence, Henao-Melo argued that the elements of § 843(b) do not

meet the definition of a drug trafficking offense for purposes of § 2L1.2(b)(1)-

(A)(i). Henao-Melo recognized that that argument was foreclosed by United

States v. Pillado-Chaparro, 543 F.3d 202 (5th Cir. 2008) (per curiam), cert. de-

nied, 129 S. Ct. 2766 (2009), but he raised it to preserve it for further review.

At sentencing, Henao-Melo acknowledged that the supporting documenta-

tion had been produced, and the court overruled the objection to the enhance-

ment. The court granted the government’s request for an additional one-level

reduction for acceptance of responsibility pursuant to § 3E1.1(b) and a two-level

1

“If the defendant previously was deported, or unlawfully remained in the United

States, after . . . (A) a conviction for a felony that is (i) a drug trafficking offense for which the

sentence imposed exceeded 13 months . . . increase by 16 levels.” U.S.S.G. § 2L1.2(b)(1) (em-

phasis removed).

2

No. 08-41313

reduction for early disposition pursuant to § 5K3.1. Those adjustments resulted

in a revised total offense level of 19 and guidelines imprisonment range of 33 to

41 months. The court sentenced Henao-Melo to 33 months’ imprisonment and

two years’ supervised release.

II.

Henao-Melo argues that the district court erred by enhancing his offense

level under § 2L1.2(b)(1)(A)(i) based on his § 843(b) conviction for use of a tele-

phone to facilitate a narcotics offense. Specifically, he contends that the gov-

ernment failed to prove that the narcotics offense he facilitated was a drug traf-

ficking offense.

A.

The government avers that Henao-Melo waived the issue by acknowledg-

ing that the appropriate documentation had been proffered to establish his

§ 843(b) conviction. At the sentencing hearing, Henao-Melo (through his attor-

ney) stated, “Your Honor, I had an objection to the 16 level upward adjustment.

I realize the documentation’s been provided, I also realize what this Circuit has

recently held on the subject. We’re just preserving the issue, your Honor.”

A closer inspection of the record, however, shows that Henao-Melo’s state-

ment that “the documentation’s been provided” was in reference to his earlier

written objection to the PSR, in which he argued that the government had failed

to provide sufficient evidence to establish his § 843(b) conviction in the first

place. That is distinct from Henao-Melo’s current argument on appeal, that the

government failed to provide sufficient evidence that the underlying narcotics

offense in his § 843(b) conviction was a drug trafficking offense for purposes of

§ 2L1.2(b)(1)(A)(i).

Essentially, Henao-Melo has, at one point or another, raised three argu-

3

No. 08-41313

ments concerning § 843(b): (1) The government failed to produce evidence suffi-

cient to establish a prior § 843(b) conviction; (2) the government failed to produce

evidence sufficient to establish that the narcotics offense he facilitated in his pri-

or § 843(b) conviction constituted a drug trafficking offense; and (3) § 843(b) con-

victions are not drug trafficking offenses, because the statutory elements do not

match the guidelines’ definition. Henao-Melo raised arguments (1) and (3) in his

written objections to the PSR. At the sentencing hearing, after the government

had produced his earlier § 843(b) judgment, he dropped argument (1) and ac-

knowledged that argument (3) is foreclosed by circuit precedent. At no point,

however, did he raise argument (2) before the district court; he does so for the

first time on appeal.

Taken alone, Henao-Melo’s statement that “the documentation’s been

provided” would understandably lead a court to believe that he implicitly admit-

ted that no more documentation was needed to justify the enhancement. His

statement, however, must be interpreted in the context of his prior written ob-

jections. Based on the record, the issue he raises on appeal is sufficiently dis-

tinct from the one he voiced in the district court that it does not fall under the

coverage of his admission.

Finally, confusing though the statement may have been, the record does

not show that Henao-Melo knew about his current alleged legal error at sen-

tencing. “[W]aiver is the intentional relinquishment of a known right.” United

States v. Arviso-Mata, 442 F.3d 382, 384 (5th Cir. 2006) (emphasis added); see

also United States v. Alfaro, 408 F.3d 204, 207 n.1 (5th Cir. 2005). By not rais-

ing the issue before the district court, Henao-Melo forfeited it.

B.

This court reviews de novo a district court’s conclusion that a prior con-

viction constitutes a drug trafficking offense. United States v. Gutierrez-Ramir-

4

No. 08-41313

ez, 405 F.3d 352, 355-56 (5th Cir. 2005). Because, however, Henao-Melo failed

to object and thus did not call the district court’s attention to the alleged error,

United States v. Rodriguez, 15 F.3d 408, 414 (5th Cir. 1994), we review only for

plain error, United States v. Garcia-Cantu, 302 F.3d 308, 310 (5th Cir. 2002).

Plain error arises where “(1) there was an error; (2) the error was clear and

obvious; and (3) the error affected the defendant’s substantial rights.” United

States v. Villegas, 404 F.3d 355, 358 (5th Cir. 2005). Even then, this court does

not exercise its discretion to correct the error unless it “seriously affects the fair-

ness, integrity, or public reputation of judicial proceedings,” id. at 359, and “re-

sult[s] in a miscarriage of justice,” United States v. Surasky, 974 F.2d 19, 21 (5th

Cir. 1992).

1.

We employ a categorical approach to determine whether a prior conviction

qualifies as a drug trafficking offense under § 2L1.2.2 Under that approach, the

court first “looks to the elements of [the] prior offense, rather than to the facts

underlying the conviction . . . .” United States v. Garza-Lopez, 410 F.3d 268, 273

(5th Cir. 2005). In some instances, the judgment alone may be sufficient.3 But,

if necessary, the court may consider such reliable documents as the charging

instrument, plea agreement, or jury instructions,4 id., but may not rely solely on

2

See, e.g., United States v. Rodriguez, 523 F.3d 519, 524 (5th Cir.), cert. denied, 129 S.

Ct. 624 (2008).

3

See, e.g., United States v. Gonzalez, 312 F. App’x 618, 620 (5th Cir.), cert. denied, 130

S. Ct. 291 (2009). (Unpublished opinions issued on or after January 1, 1996, are not prece-

dent. 5TH CIR . R. 47.5.4.)

4

Cf. Shepard v. United States, 544 U.S. 13, 16 (2005) (“[T]he statutory definition,

charging document, written plea agreement, transcript of plea colloquy, and any explicit factu-

al finding by the trial judge to which the defendant assented [constitute sufficiently reliable

evidence].”).

5

No. 08-41313

the PSR, see Garza-Lopez, 410 F.3d at 274.

The sentencing court had a copy of the § 843(b) judgment describing the

pleaded-to offense as “use of a telephone to facilitate a narcotics offense, a Class

E felony”SSa description that merely restates the statutory elements of § 843(b).5

The court also had the PSR, which is more illuminating. It states, in relevant

part, that “Eugenio Melo was involved in a conspiracy that imported heroin from

Colombia into the United States for further distribution. Eugenio Melo directed

the drug activities of this [sic] brothers, Fernando Melo and Armando [Henao-]

Melo . . . .” That is all the documentation the government produced. The court

did not have a copy of the indictment, any of the underlying indictments, a plea

agreement, or any other document to support the enhancement.

The government does not contend that the court could rely solely on the

details in the PSR to establish sufficient facts to impose the § 2L1.2 enhance-

ment. And with good reason.6 Rather, it urges us to hold that Pillado-Chaparro

stands for the proposition that the additional information contained in Henao-

Melo’s PSR is irrelevant to the enhancement inquiry. Under the government’s

reading of Pillado-Chaparro, all § 843(b) convictions for which the sentence ex-

ceeded thirteen months count as drug trafficking offenses under § 2L1.2(b)(1)-

(A)(i). Thus, by the government’s logic, the mere judgment alone in the instant

5

Section 843(b) provides, in relevant part, that “[i]t shall be unlawful for any person

knowingly or intentionally to use any communication facility in committing or in causing or

facilitating the commission of any act or acts constituting a felony under any provision of this

subchapter or subchapter II of this chapter.” That is to say, “§ 843(b) requires proof that a de-

fendant (1) knowingly or intentionally (2) used a communication facility (3) to facilitate the

commission of a drug offense.” United States v. Mankins, 135 F.3d 946, 949 (5th Cir. 1998).

6

See, e.g., Garza-Lopez, 410 F.3d at 273-74 (“While the probation officer’s factual narra-

tive in the PSR suggests that Garza-Lopez was convicted of a ‘drug trafficking offense,’ the dis-

trict court was not permitted to rely on the PSR’s characterization of the offense in order to

make its determination of whether it was a ‘drug trafficking offense.’”); cf. United States v.

Ochoa-Cruz, 442 F.3d 865, 867 (5th Cir. 2006) (§ 2L1.2(b)(1)(A)(ii)) (“Relying on the PSR alone

was clearly and obviously erroneous, as doing so conflicted with both Taylor and Shepard as

well as the underlying themes of the categorical approach.”).

6

No. 08-41313

case is sufficient to support the enhancement. That reading of Pillado-Chapparo

is too broad.

In Pillado-Chaparro, we held that a § 843(b) conviction can constitute drug

trafficking for purposes of enhancement under § 2L1.2(b)(1)(A)(i). For persua-

sive support, we relied on United States v. Orihuela, 320 F.3d 1302 (11th Cir.

2003), which analogized the § 2L1.2 definition of “drug trafficking offense” to the

nearly identical § 4B1.2 definition of “controlled substance offense,” 7 thereby im-

porting the more extensive § 4B1.2 caselaw, to conclude that a § 843(b) convic-

tion can fall under § 2L1.2. There is, admittedly, some broad language in Pilla-

do-Chapparo that might seem to suggest the government’s conclusion.8 Lan-

guage that is just as similarly broad can be found in Orihuela.9

Nevertheless, it would be incorrect to read Pillado-Chaparro so broadly as

to say that all § 843(b) convictions for which the sentence imposed exceeded thir-

teen months are necessarily drug trafficking offenses, no matter the particulars

of the underlying felony narcotics offense. In that case, 543 F.3d at 205, we were

careful to note that “[t]he facts charged in the applicable paragraph of the indict-

7

Compare U.S.S.G. § 2L1.2 cmt. 1(B)(iv) (“‘Drug trafficking offense’ means an offense

under federal, state, or local law that prohibits the manufacture, import, export, distribution,

or dispensing of, or offer to sell a controlled substance . . . or the possession of a controlled sub-

stance . . . with intent to manufacture, import, export, distribute, or dispense.”) with U.S.S.G.

§ 4B1.2(b) (“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 manufac-

ture, import, export, distribution, or dispensing of a controlled substance . . . or the possession

of a controlled substance . . . with intent to manufacture, import, export, distribute, or dis-

pense.”). Given the similarities, we cite cases interpreting one or the other interchangeably.

See, e.g., Pillado-Chaparro, 543 F.3d at 204-05; United States v. Gutierrez, 304 F. App’x 331,

332 (5th Cir. 2008).

8

See, e.g., Pillado-Chaparro, 543 F.3d at 204 (“We find Orihuela persuasive and now

join our sister circuits in holding that a § 843(b) conviction constitutes a ‘drug trafficking of-

fense’ under § 2L1.2(b)(1)(A)(i).”).

9

See, e.g., Orihuela, 320 F.3d at 1304-05 (“[A] conviction for an offense in violation of

21 U.S.C. § 843(b) can constitute a ‘drug trafficking offense’ where the underlying drug offense

was a felony and the sentence imposed for the facilitation crime exceeded 13 months.”).

7

No. 08-41313

ment are plainly sufficient to support the enhancement; that Pillado-Chaparro

facilitated the commission of an independent drug crime, conspiracy to distribute

marijuana and cocaine.” The government there did not point to the mere fact of

a § 843(b) conviction to justify the enhancement but instead produced a suffici-

ently-detailed indictment containing a reference to an underlying offense that

falls within § 2L1.2’s definition of drug trafficking.

The logic of Orihuela requires the government to show that the underlying

drug crime amounts to drug trafficking. The court in Orihuela, 320 F.3d at

1304, pointed to a recent amendment to § 4B1.2 10 as support for the proposition

that a § 843(b) conviction can be a controlled substance offenseSSand, by exten-

sion, a drug trafficking offense. That amendment “codif[ied] [prior] decisions by

providing that a violation of 21 U.S.C. § 843(b) is a controlled substance offense

if the facilitated drug offense meets the Guidelines definition of a controlled sub-

stance offense.” Id. at 1304-05. It is, therefore, not the defendant’s act of facili-

tation that can constitute a controlled substance or drug trafficking offense, but,

rather, the underlying crime that he facilitated that can do so.11

Additionally, the court in Oriheula recognized the need for that underlying

offense to fit the definition of a controlled substance offense. Take, for instance,

10

U.S.S.G. App. C, Amend. No. 568 (Nov. 1, 1997); see U.S.S.G. § 4B1.2 cmt. 1 (“Using

a communications facility in committing, causing, or facilitating a drug offense (21 U.S.C.

§ 843(b)) is a ‘controlled substance offense’ if the offense of conviction established that the

underlying offense (the offense committed, caused, or facilitated) was a ‘controlled substance

offense.’”).

11

This makes the government’s reliance at oral argument on United States v. Abuelha-

wa, 129 S. Ct. 2102 (2009), perplexing. There, the Court determined that the use of a tele-

phone to make a misdemeanor drug purchase does not constitute facilitation of the underlying

felony of drug distribution. Id. at 2106-08. Thus, in the wake of Abuelhawa, a mere buyer

cannot be convicted of § 843(b) on the theory that he facilitated the dealer’s crime of selling

drugs by being a purchaser.

That has nothing to do with the issue in the instant case. Our focus is not on the spe-

cific conduct of Henao-Melo that constituted facilitation, but rather on the underlying offense

that he facilitated.

8

No. 08-41313

its reference to United States v. Walton, 56 F.3d 551 (4th Cir. 1995). Praising its

succinct reasoning, the Orihuela court quotes Walton:

We believe that Walton’s offense of “us[ing] the public telephone sys-

tem in committing, causing and facilitating . . . the distribution of

cocaine and the conspiracy to distribute cocaine,” constitutes the

aiding and abetting of a § 4B1.2(2) offense, and therefore qualified

as a “controlled substance offense.” The distribution of cocaine is

clearly a § 4B1.2(2) offense, and using the telephone system in facili-

tating the distribution of narcotics is equivalent to aiding and abet-

ting that distribution.

Orihuela, 320 F.3d at 1305 (quoting Walton, 56 F.3d at 555-56).12 That is to say,

a § 843(b) violation is a controlled substance offense only if “the offense of convic-

tion established that the underlying offense (the offense committed, caused, or

facilitated) was a ‘controlled substance offense.’” U.S.S.G. § 4B1.2 cmt. 1. Per

the analogy to drug trafficking offenses, a § 843(b) violation is, therefore, a drug

trafficking offense only if the underlying offense was a drug trafficking offense.

Of course, all this focus on the particulars of the underlying offense is

purely academic if the “act or acts constituting a felony” in § 843(b) by necessity

satisfy the guidelines definition of drug trafficking. But that is not the case. “A

conviction under § 843(b) requires proof that a defendant (1) knowingly or inten-

tionally (2) used a communications facility (3) to facilitate the commission of a

drug offense.” Mankins, 135 F.3d at 949. A felony drug offense is “an offense

that is punishable by imprisonment for more than one year under any law of the

United States or of a State or foreign country that prohibits or restricts conduct

relating to narcotic drugs, marihuana, or depressant or stimulant substances.”

Id. (quoting 21 U.S.C. § 802(44)).

By contrast, a drug trafficking offense is “an offense under federal, state,

or local law that prohibits the manufacture, import, export, distribution, or dis-

12

See also U.S.S.G. § 4B1.2 cmt. 1 (requiring, by its plain terms, that the underlying

felony drug crime constitute a controlled substance offense).

9

No. 08-41313

pensing of, or offer to sell a controlled substance . . . or the possession of a con-

trolled substance . . . with intent to manufacture, import, export, distribute, or

dispense.” U.S.S.G. § 2L1.2 cmt. 1(B)(iv). The takeaway: Not all felony drug of-

fenses are drug trafficking offenses.

As Henao-Melo points out, § 843(b) includes among its prohibited offenses

the simple possession of flunitrazepam, more than five grams of cocaine base, or

the subsequent possession of any prohibited drug after a prior conviction of pos-

sessing it. 21 U.S.C. § 844(a). Thus, someone convicted of using a telephone to

facilitate a narcotics offense under § 843(b) could be guilty of doing nothing more

than using a phone to facilitate the possession of five or more grams of cocaine.

A bad act, to be sure, but not drug trafficking.13

Then-Judge Alito recognized as much. In the course of upholding the par-

ticular enhancement at issue in light of a detailed plea agreement identifying

the underlying crime as a “controlled substance offense,” United States v. Wil-

liams, 176 F.3d 714, 717 n.3 (3d Cir. 1999), he noted,

We avoid concluding that all § 843(b) convictions are ‘controlled sub-

stance offense[s]’ because a defendant could be convicted under

§ 843(b) without engaging in any of the activities enumerated in

§ 4B1.2(2). For example, in certain circumstances, the mere posses-

sion of a controlled substance can be considered a felony under 21

U.S.C. § 844(a) . . . . Such a conviction would not constitute a

‘controlled substance offense’ because simple possession is not ‘an of-

fense under a . . . law prohibiting the manufacture, import, export,

distribution, or dispensing of a controlled substance . . . or the pos-

session of a controlled substance . . . with intent to manufacture, im-

port, export, distribute, or dispense. U.S.S.G. § 4B1.2(2).

Section 843(b) doubtless prohibits the facilitation of many narcotics of-

fenses that fall within the confines of the § 2L1.2 drug trafficking definition. But

13

See, e.g., United States v. Caicedo-Cuero, 312 F.3d 697, 707 (5th Cir. 2002) (“[The de-

finition of ‘drug trafficking offense’ in § 2L1.2] clearly excludes simple possession of a con-

trolled substance.”); see generally U.S.S.G. § 2L1.2 cmt. 1(B)(iv).

10

No. 08-41313

it also proscribes offenses that fall outside that definition. As the Court noted

in Shepard, 544 U.S. at 24, 26, Taylor demands certainty when determining

whether a past guilty plea “necessarily admitted elements of the generic of-

fense.” Given only that Henao-Melo pleaded guilty to a § 843(b) offense, the

court could not conclude with the requisite certainty that he facilitated the kind

of narcotics offense that constitutes drug trafficking in order to support the

§ 2L1.2(b)(1)(A)(i) drug trafficking enhancement.14

When confronted with a statute that is broader than the enhancement’s

definition, the government must provide sufficient documentation so that the

court can ensure that the defendant’s specific crime qualifies for the enhance-

ment. For instance, the government in Pillado-Chaparro produced an indict-

ment that mentioned a “conspiracy to distribute marijuana and cocaine.” Pilla-

do-Chaparro, 543 F.3d at 205. The government in Rodriguez-Duberney provided

a similar charging document. Rodriguez-Duberney, 326 F.3d at 617. The court

in Gutierrez had before it “a judgment of conviction that expressly state[d] that

Gutierrez pled guilty to distribution . . . by possession with intent to distribute

. . . .” Gutierrez, 304 F. App’x at 333-34.

Here, by contrast, the court had only the details contained in the PSR,

which it could not rely on, and a judgment that did nothing more than track the

language of the statute. A similar situation occurred in Gutierrez-Ramirez, in

which, 405 F.3d at 359, we found a § 2L1.2(b)(1)(A)(i) sentencing enhancement

invalid because of insufficient documentation that the defendant’s California

state law conviction constituted a drug trafficking crime. There, as here, the

document “merely track[ed] the language of the statute.” Id. And with a “record

[that] contain[ed] no other evidence to narrow Gutierrez-Ramirez’s . . . conviction

14

Cf. United States v. Houston, 364 F.3d 243, 246 (5th Cir. 2004) (“If an indictment is

silent as to the offender’s actual conduct, we must proceed under the assumption that his con-

duct constituted the least culpable act satisfying the count of conviction.”).

11

No. 08-41313

to permit a determination whether it qualifies as a ‘drug trafficking offense,’”

there, also as here, “the district court erred in imposing the 16-level enhance-

ment . . . .” Id.; see also United States v. Rodriguez-Ibarra, 180 F. App’x 513,

513-14 (5th Cir. 2006).

In summary, § 843(b) prohibits some conduct that does not fall within the

§ 2L1.2 definition of drug trafficking. The government did not present sufficient

information from reliable documents to establish that Henao-Melo’s § 843(b) vio-

lation fell within that definition. Consequently, the application of the enhance-

ment is error.

2.

On this record, error alone is not enough to reverse. That error must also

have been plain.

As we already noted, there is language in Pillado-Chaparro that lends sup-

port to the government’s broad interpretation. It would have been understand-

able, if incorrect, for the court to have considered that case as establishing that

all § 843(b) convictions for which the sentence imposed exceeded thirteen months

qualified for § 2L1.2(b)(1)(A)(i) enhancement without further inquiry into the

nature of the underlying narcotics offense. Our contrary conclusion is reached

“only by a careful parsing of all the relevant authorities, including the sentenc-

ing guidelines and applicable decisions.” United States v. Rodriguez-Parra, 581

F.3d 227, 231 (5th Cir. 2009). The error here was not “obvious,” “clear,” or “read-

ily apparent,” such that the court was “derelict in countenancing [it] . . . even ab-

sent the defendant’s timely assistance in detecting [it].” United States v. Miller,

406 F.3d 323, 330 (5th Cir. 2005) (citations omitted).

Indeed, Henao-Melo went beyond merely failing to assist the district court

in detecting the error. Though the record indicates that he did not waive his ar-

gumentSSbecause he had no knowledge of the present legal issue, and because

12

No. 08-41313

his statement was actually in reference to a different, earlier argumentSSthat

does not mean that his statement would not confuse a court. It is not quite the

same as merely standing mute. As we said in United States v. Ruiz-Arriaga, 565

F.3d 280, 283 (5th Cir.), cert. denied, 130 S. Ct. 227 (2009), “[s]entencing under

the Guidelines is so complex . . . that the court should not be faulted for ‘plain’

error when counsel’s affirmative statements allay any possible concern.” The er-

ror was not plain.

III.

Henao-Melo also contends that a § 843(b) conviction cannot constitute drug

trafficking for purposes of sentencing enhancement, because the elements of

§ 843(b) do not match the definition of “drug trafficking offense” in § 2L1.2.

“[W[e review de novo the district court’s interpretation of the guidelines.” United

States v. O’Banion, 943 F.2d 1422, 1431 (5th Cir. 1991). As Henao-Melo readily

admits, that contention is foreclosed by Pillado-Chaparro.

The judgment is AFFIRMED.

13