UNITED STATES of America, Plaintiff-Appellee, v. Deciderio MARBAN-CALDERON, Defendant-Appellant

United States Court of Appeals for the Fifth Circuit2011-01-18No. No. 09-40207

631 F.3d 210

Summary · law.co

Holding. The court affirmed the district court's sentence, holding that applying the 2008 Sentencing Guidelines to Marban's conduct does not constitute plain error and that his prior Texas drug delivery conviction qualifies as a drug trafficking offense under the amended Guidelines definition.

Deciderio Marban-Calderon pleaded guilty to illegal reentry after deportation and received a 16-level sentencing enhancement based on a prior 2005 Texas conviction for drug delivery. At sentencing in 2009, the district court applied the 2008 edition of the Sentencing Guidelines, which had been amended to include "offer to sell" within the definition of drug trafficking offenses. Marban challenged the application of these Guidelines as violating the Ex Post Facto Clause since they took effect after his underlying conduct.

The court rejected Marban's Ex Post Facto argument under a plain-error standard because he failed to raise the issue at sentencing. The court noted that other circuit courts remain divided on whether retroactive application of amended Guidelines constitutes constitutional error, and therefore determined that such application does not rise to the level of plain error under controlling precedent.

Regarding the drug trafficking enhancement itself, the court held that under prior Guidelines versions, a Texas delivery conviction did not automatically qualify as drug trafficking because it could rest solely on an offer to sell, without proof of actual drug possession or transfer. The 2008 amendment changed this by expressly adding "offer to sell" to the statutory definition, making Marban's conviction clearly qualify as a drug trafficking offense.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether retroactive application of amended Sentencing Guidelines violates the Ex Post Facto Clause
Whether a Texas conviction for delivery of a controlled substance qualifies as a drug trafficking offense under the Sentencing Guidelines
Whether an offer to sell constitutes a drug trafficking offense

Procedural posture

Marban appealed his sentence imposed following his guilty plea to illegal reentry after previous deportation.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

majority opinion

PATRICK E. HIGGINBOTHAM, Circuit Judge:

Defendant-appellant Deciderio MarbanCalderon (“Marban”) pleaded guilty in October 2008 to one count of illegal reentry following a previous deportation. At a sentencing hearing in February 2009, Mar-ban received a 16-level sentence enhancement for a prior felony drug trafficking offense based on his 2005 Texas state-law conviction for delivery of a controlled substance. Although we have held that this offense does not qualify for a drug trafficking enhancement under past editions of the Sentencing Guidelines, the Guidelines were amended effective November 2008 to broaden the definition of a drug trafficking offense. Applying the 2008 edition of the Sentencing Guidelines, we affirm Marban’s sentence.

Marban first argues that the district court violated the Ex Post Facto Clause by applying the 2008 Guidelines to conduct occurring before those Guidelines went into effect. Because Marban did not object at sentencing to the use of the 2008 Guidelines, we review only for plain error. Marban must show that the alleged error was “clear or obvious” and that it affects his substantial rights.

Our court has not yet decided whether the Ex Post Facto Clause permits retroactive application of Sentencing Guidelines that recommend a greater sentence- than the Guidelines in effect at the time of the offense. Our sister circuits which have considered this issue are divided. In light of this disagreement, we held in United States v. Castillo-Estevez that applying an amended version of the Sentencing Guidelines does not rise to the level of plain error.

Our decision in Castillo-Estevez directly controls this case. Accordingly, we follow the district court in reviewing Marban’s sentence under the 2008 edition of the Sentencing Guidelines.

We have held on several occasions that, under past editions of the Sentencing Guidelines, a Texas conviction for “delivery of a controlled substance” did not qualify as a drug trafficking offense. Applying the categorical approach of Taylor and Shepard, we consider only the elements of the offense and those facts essential to the conviction. Under Texas law, a defendant may be convicted of delivery of a controlled substance based on a mere “offer[ ] to sell.” Prior to November 2008, however, the Guidelines definition of a drug trafficking offense required that the defendant actually possess the drugs or cause them to be transferred, facts which are not necessarily proven when a defendant is convicted of an offer to sell.

The Sentencing Guidelines were subsequently amended to add “offer[s] to sell” to the definition of a drug trafficking offense. Beginning with the 2008 edition of the Sentencing Guidelines,

“[d]rug 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 a counterfeit substance) or the possession of a controlled substance (or a counterfeit substance) with intent to manufacture, import, export, distribute, or dispense.

Following this change, a Texas conviction for delivery of a controlled substance— whether by active transfer, by constructive transfer, or by offer to sell — necessarily qualifies as a drug trafficking offense under the Sentencing Guidelines. Accordingly, the district court did not err by applying the felony drug trafficking enhancement to Marban’s sentence.

The judgment of the district court is AFFIRMED.

. See 8 U.S.C. §§ 1326(a)-(b).

. See U.S.S.G. § 2L1.2(b)(l)(A)(i) (2008).

. See Tex. Health & Safety Code § 481.112(a).

. U.S. Const, art. I, § 9, cl. 3.

. Puckett v. United States, - U.S. -, 129 S.Ct. 1423, 1428-29, 173 L.Ed.2d 266 (2009) (citing Fed.R.Crim.P. 52(b)); United States v. Castillo-Estevez, 597 F.3d 238, 240 (5th Cir.2010), cert. denied, — U.S. -, 131 S.Ct. 457, 178 L.Ed.2d 287 (2010).

. Puckett, 129 S.Ct. at 1429.

. See Castillo-Estevez, 597 F.3d at 241 (expressly reserving this question).

. Compare, e.g., United States v. Demaree, 459 F.3d 791, 795 (7th Cir.2006) (holding that the Ex Post Facto Clause does not apply to the advisory Sentencing Guidelines), and United States v. Barton, 455 F.3d 649, 655 n. 4 (6th Cir.2006) (same), with United States v. Turner, 548 F.3d 1094, 1099-1100 (D.C.Cir.2008) (holding that the Ex Post Facto Clause prohibits retroactive application Sentencing Guidelines that would recommend a greater sentence), United States v. Ortiz, 621 F.3d 82, 87 (2d Cir.2010) (adopting Turner), United States v. Lewis, 606 F.3d 193, 199 (4th Cir.2010), United States v. Wood, 486 F.3d 781, 789-91 (3d Cir.2007), and United States v. Larrabee, 436 F.3d 890, 894 (8th Cir.2006).

. Castillo-Estevez, 597 F,3d at 240-41.

. See United States v. Ibaira-Luna, 2010 WL 5175510 at *1-2, 628 F.3d 712, 713-716 (5th Cir.2010); United States v. Morales-Martinez, 496 F.3d 356, 358 (5th Cir.2007); United States v. Gonzales, 484 F.3d 712, 714-15 (5th Cir.2007); United States v. Garza-Lopez, 410 F.3d 268, 273 (5th Cir.2005).

. See Shepard v. United States, 544 U.S. 13, 16, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005); Taylor v. United States, 495 U.S. 575, 602, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990).

. Tex. Health & Safety Code §§ 481.002, 481.112(a).

. U.S.S.G. § 2L1.2 cmt. n. l(b)(iv) (2007); see Ibarra-Luna, at *1, 628 F.3d at 715; Morales-Martinez, 496 F.3d at 358.

. U.S.S.G. amend. 722 (App. C & Supp. 2010).

. Id. § 2L1.2 cmt. n. l(b)(iv) (2008) (emphasis added).

. This holding is foreshadowed by our opinion in Ibarra-Luna, at *1-2, 628 F.3d at 715-16.