holding that a defendant’s substantial rights were affected when the defendant received a sentence of seventy-seven months based on an erroneously calculated Guidelines range of seventy-seven to ninety-six months, and, absent plain error, the defendant’s Guidelines range would have been thirty-three to forty-one months
How later courts described this case
- holding that a defendant’s substantial rights were affected when the defendant received a sentence of seventy-seven months based on an erroneously calculated Guidelines range of seventy-seven to ninety-six months, and, absent plain error, the defendant’s Guidelines range would have been thirty-three to forty-one months
- concluding that section 11379(a) of the California Health and Safety Code was broader than section 2L1.2’s definition of “drug trafficking offense” because section 11379(a) also criminalizes, inter alia, offering to sell a controlled substance
- concluding that a plain error affected the “fairness of the judicial proceedings” when it “resulted in the imposition of a sentence that was substantially greater than would otherwise have been permitted under the Sentencing Guidelines”
- holding that a California statute that criminalizes “transportation of a controlled substance for personal use and offers to transport, sell, furnish, administer, or give away a controlled substance” is not a drug trafficking offense
Written by the judges who cited it.
The opinion
EMILIO M. GARZA, Circuit Judge,
concurring in the judgment only:
For the reasons stated in my partial concurrence in United States v. Creech, *277 408 F.3d 264, 274 , No. 04-40354, 2005 WL 1022435, at *9 (5th Cir. May 3, 2005), I disagree with the majority’s statement, citing Villegas, that in determining whether the district court committed plain error we review its application and interpretation of the Guidelines de novo. Booker instructs that, in determining whether a sentencing court committed error, courts of appeals are to “review sentencing decisions for unreasonableness.” Booker, 125 S.Ct. at 767 (emphasis added). Because our review is for unreasonableness, it is not enough to say that, under a de novo standard, the sentencing court incorrectly interpreted or applied the Guidelines.
I nevertheless join the majority’s judgment vacating Garza-Lopez’s sentence and remanding for resentencing, because the record indicates that the district court did not have before it an adequate basis to impose a § 2L1.2(b)(1)(A)(i) sentencing enhancement. Generally, a sentencing court is permitted “to look only to the fact of [prior] conviction and the statutory definition of the prior offense.” Taylor, 495 U.S. at 602, 110 S.Ct. 2143 . The statutory definition at issue in this case encompasses activity that does not fall within the definition of “drug trafficking offense” under § 2L1.2(b)(1)(A)(i). See Navidad-Marcos, 367 F.3d at 907. To conclude that Garza-Lopez had previously been convicted of a “drug trafficking offense,” therefore, the sentencing court needed to have before it the “charging document, written plea agreement, transcript of plea colloquy, [or] any explicit factual finding by the trial judge to which the defendant assented.” Shepard, 125 S.Ct. at 1257. Without benefit of one of the Shepard-approved documents, this court cannot determine whether the sentence imposed was unreasonable under Booker. Accordingly; we must remand this case to the district court for resentencing.