US v. Geomar Quintero

Filing 920081017

Opinion

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 06-4950

UNITED STATES OF AMERICA, Plaintiff ­ Appellee, v. GEOMAR QUINTERO, a/k/a Solis Delqui, Defendant ­ Appellant.

Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Robert J. Conrad, Jr., Chief District Judge. (3:06-cr-00024)

Argued:

September 25, 2008

Decided:

October 17, 2008

Before WILKINSON, MICHAEL, and SHEDD, Circuit Judges.

Affirmed by unpublished per curiam opinion.

ARGUED: Matthew Segal, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Asheville, North Carolina, for Appellant. Amy Elizabeth Ray, OFFICE OF THE UNITED STATES ATTORNEY, Asheville, North Carolina, for Appellee. ON BRIEF: Cecilia Oseguera, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Charlotte, North Carolina, for Appellant. Gretchen C. F. Shappert, United States Attorney, Charlotte, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Geomar Quintero pleaded guilty to one count of illegal

reentry into the United States by a convicted felon in violation of 8 U.S.C. §§1326(a) and (b)(2). to He U.S. received Sentencing a 16-level

sentence

enhancement

pursuant

Guidelines

Manual §2L1.2(b)(1)(A) based on his previous deportation after conviction of a "drug trafficking offense" for which the

sentence imposed exceeded 13 months. enhancement. finding that He his argues prior under that the

The defendant appeals this sentencing court as erred a in

conviction §2L1.2 and

qualified an

"drug felony"

trafficking

offense"

"aggravated

under §1326(b)(2).

He also argues that the sentencing court's

use of a prior conviction to enhance his sentence violated his Sixth Amendment right to a jury trial. We reject these

arguments and affirm the sentence.

I. On March 15, 2006, the defendant pleaded guilty to the

charge of illegal reentry into the United States by a convicted felon in violation of 8 U.S.C. §§1326(a) and (b)(2). At the

sentencing hearing, the court found an offense level of 21 based on the presentence report which calculated a base offense level of eight, a 16-level enhancement pursuant to §2L1.2(b)(1)(A) for previous deportation after conviction 2 of a "drug trafficking

offense,"

and

a

three-level The

reduction objected his

for to

acceptance the

of

responsibility. enhancement on

defendant that

16-level under

the

ground

1996

conviction

California Health and Safety Code §11352(a) did not constitute a "drug trafficking offense." Specifically, the defendant argued

that because he pleaded no contest to §11352(a), which covers some conduct that is a "drug trafficking offense" and some

conduct that is not a "drug trafficking offense," he was not necessarily offense." convicted The of committing also a "drug to the trafficking documents

defendant

objected

proffered by the government to narrow the charge.

The district

court agreed that the statute was too broad to categorically qualify as a "drug trafficking offense," but held that the plea colloquy and other judicially noticeable documents established that the defendant had pleaded no contest to the sale of cocaine base which was indisputably a "drug trafficking offense." The

court found that the defendant's criminal history category was II and the corresponding Guidelines' range for an offense level of 21 was 41 to 51 months' imprisonment. the defendant to 41 months' imprisonment. this sentence. The court sentenced Quintero now appeals

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II. Quintero claims that the sentencing court erred in

enhancing his sentence pursuant to U.S.S.G. §2L1.2 based on a determination that his 1996 conviction for violating §11352(a) was a "drug trafficking offense." We review the sentencing

court's determination de novo because it is a question of law. See United States v. Chacon, 533 F.3d 250, 253 (4th Cir. 2008). According to U.S.S.G. §2L1.2(b)(1)(A), a 16-level

enhancement is warranted for illegal reentry in violation of 8 U.S.C. §1326 if the defendant was previously deported after "a conviction for a felony that is (i) a drug trafficking offense for which the sentence imposed exceeded 13 months." §2L1.2(b)(1)(A). Application Note 1(B)(iv) U.S.S.G. "drug

defines

trafficking offense" as "an offense under federal, state, or local law that or prohibits dispensing or the of manufacture, a controlled with import, substance intent to export, (or do a

distribution, counterfeit same.

substance)"

possession

the

U.S.S.G. §2L1.2 cmt. n.1(B)(iv). The parties argue extensively over whether §11352(a) is a

"drug trafficking offense" on its face and whether the extended list of verbs in §11352(a) fit within the definition of "drug trafficking 1(B)(iv). offense" in U.S.S.G. §2L1.2 Application Note

We see no need to explore this question because the

plea colloquy so clearly establishes that the defendant's 1996 4

conviction

was

for

selling

cocaine

base

which

unquestionably

constitutes a "drug trafficking offense." The sentencing court did not err in relying on the plea colloquy. elements Shepard v. United States permits courts to look to "necessarily admitted" by the defendant in a prior

guilty plea to determine whether a prior conviction qualifies for a sentence enhancement. are permitted 544 to U.S. 13, the 16 (2005).

Specifically, definition,

courts charging

examine

"statutory agreement,

document,

written

plea

transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented." Id. The plea colloquy makes clear that the defendant's 1996 conviction under §11352(a) was for the sale of cocaine base. On

January 12, 1996, the defendant pleaded no contest to one count of violating §11352(a) There and was sentenced to five in the years' plea

imprisonment.

are

two

clear

instances

colloquy where the defendant admitted that he was pleading no contest to the sale of cocaine base. First, the court began the

plea hearing by stating: "Charged with selling cocaine base on July 12, 1995 in violation of §11352(a) of the Health and Safety Code. Do you understand that charge, Sir?" The defendant

responded "Yes."

Second, the court later asked: "How do you

plead to the charge that you violated Health and Safety Code §11352(a), sale of cocaine base?" The defendant responded "No 5

contest."

These statements establish that the defendant pleaded

no contest to the sale of cocaine base. The defendant argues that the sentencing court was not

permitted to consider the plea colloquy because the defendant did not confirm the factual basis for the plea as required by Shepard, and therefore the facts were not "necessarily admitted" by the defendant. See Shepard, 544 U.S. at 26 (permitting

courts to look to plea colloquies "in which the factual basis for the plea was confirmed by the defendant"). in this argument. We find no merit

As discussed above, the defendant directly

admitted that he was pleading no contest to the "sale of cocaine base" and "selling cocaine base." Furthermore, during the plea

colloquy defendant's counsel stipulated to a factual basis after the defendant made these statements. Therefore, the sentencing

court did not err in relying on the plea colloquy to determine that the defendant's 1996 conviction was for the sale of cocaine base. The sale of cocaine base undeniably qualifies as a "drug trafficking offense" under U.S.S.G. §2L1.2 because it is the "distribution, U.S.S.G. court or dispensing cmt. of a controlled Therefore, that the substance." the See

§2L1.2

n.1(B)(iv). to conclude

sentencing 1996

was

correct

defendant's

conviction was a "drug trafficking offense" and did not err in applying a 16-level enhancement under §2L1.2(b)(1)(A). 6

We need not consider the defendant's arguments with respect to the admissibility of the other documents. Any possible

resulting errors would be harmless in light of the fact that the plea colloquy unequivocally establishes that the defendant's

1996 conviction was a "drug trafficking offense."*

III. The defendant also claims that the sentencing court's use of his prior conviction to enhance his sentence violates his Sixth Amendment right to a jury trial. argument defendant forecloses merely to preserve concedes, it for The defendant makes this appeal Supreme because, Court v. as the

properly his

current See

doctrine United

argument.

Almendarez-Torres

States, 523 U.S. 224 (1998) (holding that the Constitution does not require that prior convictions be alleged in an indictment for a guilty plea or proven to a jury beyond a reasonable doubt in order to be the basis of a sentence enhancement); see also

The defendant also claims, apparently for the first time on appeal, that the district court erred in applying a statutory sentencing enhancement pursuant to 8 U.S.C. §1326(b)(2) based on a determination that his 1996 conviction was an "aggravated felony." For the reasons stated above, the district court did not err in relying on the plea colloquy to determine that the defendant's 1996 conviction was for the sale of cocaine base. The sale of cocaine base is unquestionably an "aggravated felony" which is defined to include "illicit trafficking in a controlled substance." 8 U.S.C. §1101(a)(43)(B).

*

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Apprendi v. New Jersey, 530 U.S. 466, 490 (2000) ("Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.") (emphasis added). Despite some questioning of the continued

vitality of the prior conviction exception, see Shepard, 544 U.S. at 27-28 (Thomas, J., concurring in part and concurring in the judgment), Almendarez-Torres is still good law and this

court is bound to follow it. F.3d 349 (4th Cir. 2005). argument.

See United States v. Cheek, 415

Therefore, we reject the defendant's

IV. For the foregoing reasons, we affirm the sentence. AFFIRMED

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