USA v. Juan Espinoza-Bazaldua

Filing

UNPUBLISHED OPINION FILED. [16-41069 Affirmed ] Judge: PEH , Judge: JEG , Judge: SAH Mandate pull date is 11/06/2017 for Appellant Juan Jose Espinoza-Bazaldua [16-41069]

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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 16-41069

United States Court of Appeals
Fifth Circuit

FILED
October 16, 2017

UNITED STATES OF AMERICA,

Lyle W. Cayce
Clerk

Plaintiff - Appellee
v.
JUAN JOSE ESPINOZA-BAZALDUA,
Defendant - Appellant

Appeal from the United States District Court
for the Southern District of Texas
Before HIGGINBOTHAM, GRAVES, and HIGGINSON, Circuit Judges.
STEPHEN A. HIGGINSON, Circuit Judge:*
Juan Jose Espinoza-Bazaldua appeals the 37-month sentence he
received after pleading guilty to illegal reentry. He argues that the district
court incorrectly calculated his Guidelines offense level by applying a 16-level
increase for his underlying conviction in Indiana of “dealing in marijuana.”
According to Espinoza-Bazaldua, this conviction is not a “drug trafficking
offense” as defined by the United States Sentencing Guidelines.

Because

Espinoza-Bazaldua has not demonstrated that Indiana’s “dealing-in-

Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
*

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marijuana” statute criminalizes more conduct than that captured by the
Guidelines’ generic definition of “drug trafficking offense,” we affirm. 1
I
Espinoza-Bazaldua pleaded guilty to one count of illegal reentry in
violation of 8 U.S.C. §§ 1326(a), (b). Before his scheduled sentencing hearing,
the Probation Office—properly relying on the 2015 Sentencing Guidelines—
calculated Espinoza-Bazaldua’s offense level according to § 2L1.2, the
sentencing guideline for “unlawfully entering or remaining in the United
States.” The 2015 version of § 2L1.2 directed courts to apply a base offense
level of 8 and to add 16 if the defendant was deported after “a conviction for a
felony that is . . . a drug trafficking offense for which the sentence imposed
exceeded 13 months [and] the conviction receives criminal history points under
Chapter Four [of the Sentencing Guidelines.]” U.S.S.G. § 2L1.2(b)(1)(A)(i)
(2015). In its Presentence Investigation Report (PSR) to the district court, the
Probation Office assigned Espinoza-Bazaldua this 16-level increase because he
was deported after a felony conviction under Indiana Code § 35-48-4-10 (2005)
for “[d]ealing in marijuana.” According to the PSR, Espinoza-Bazaldua was
convicted of one count of dealing marijuana and sentenced to four years’
imprisonment.
Espinoza-Bazaldua objected in writing to the PSR’s calculation of his
total offense level, arguing that because Indiana’s dealing-in-marijuana
statute is broader than the Guidelines’ definition of “drug trafficking offense”
and indivisible, the 16-level increase does not apply. Specifically, EspinozaBazaldua argued that Indiana’s statute was broader than the Guidelines’

The parties completed briefing in this case in December 2016, before our court
decided United States v. Castillo-Rivera, 853 F.3d 218 (5th Cir. 2017) (en banc). Because
Castillo-Rivera bears on this appeal, as discussed below, we received supplemental briefing
from the parties on the requirements of Castillo-Rivera and how they apply here.
1

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definition,
substances,

which

includes

because

manufacturing

Indiana

additionally

and

delivering

criminalizes

controlled

financing

the

manufacture or delivery of drugs. He also argued that because Indiana law
treats manufacturing, delivering, and financing as alternative factual means
of committing the same offense, the statute is indivisible. Finally, EspinozaBazaldua argued that if the district court applied the 16-level increase, his
offense level would be “excessive.” He noted that under the then-forthcoming
2016 Guidelines,his applicable advisory range would be 30 to 37 months,
rather than the PSR’s calculation of 46 to 57 months under the 2015
Guidelines.
The Probation Office responded to the objections that whether EspinozaBazaldua’s dealing-in-marijuana conviction was a “drug trafficking offense”
was a “legal issue . . . deferred to the Court for further consideration.” The
Probation Office also confirmed that Espinoza-Bazaldua correctly calculated
what range would apply under the 2016 Guidelines, and that if applied, the
2016 Guidelines “would benefit” him.
At sentencing, Espinoza-Bazaldua reurged his objection that because
Indiana’s dealing-in-marijuana statute was broader than the Guidelines’
definition of “drug trafficking offense” and indivisible, it could not be used to
increase his offense level.

The district court overruled the objection,

explaining: “[K]nowing[ly] or intentional[ly] provi[ding] . . . funding for either
the manufacture or delivery [of drugs] would constitute aiding and abetting in
the drug trafficking offense.

That is encompassed by . . . the sentencing

guidelines. So the objection is overruled.”
In response to the district court’s overruling the objection, EspinozaBazaldua’s counsel said:

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Your Honor, given the Court’s ruling, I would ask the Court to, as
I’ve stated[] in our departure request[,] to consider that the weight
attached to the 16-level enhancement in this case is excessive.
....
His prior conviction for illegal reentry [resulted in] a sentence of
24 months at that time. . . . I understand graduated punishment
but I would ask the Court to consider a sentence that’s graduated
and not a sentence that would be such a precipitous increase from
the last sentence that he received.
By my calculation under the guidelines as they would take effect
in November, his range would be 30 to 37 months. I would ask the
Court to consider imposing a sentence in the guideline range that
would come into effect in November.
The district court then explained that it was “grant[ing Espinoza-Bazaldua] a
departure [to] sentence [him] within what would otherwise be the applicable
guideline range come November[.]” In sentencing Espinoza-Bazaldua to a
term of 37 months’ imprisonment, the court noted that this was “more,
obviously, than the 24 [months] that you had served previously but not quite
what you’re facing now.”
Espinoza-Bazaldua timely appealed, arguing only that the district court
erred by applying the 16-level “drug trafficking offense” enhancement for his
Indiana conviction for dealing in marijuana.
II
“We review the district court’s interpretation and application of the
Sentencing Guidelines de novo.” United States v. Rodriguez-Negrete, 772 F.3d
221, 224 (5th Cir. 2014). This includes whether a prior conviction constitutes
a “drug trafficking offense” under § 2L1.2. See id. at 224-25.
The Government argues that, in this case, we should find EspinozaBazaldua’s argument waived under the doctrine of invited error, or at least
apply plain-error review because Espinoza-Bazaldua “relinquished his
objection.”

We find that Espinoza-Bazaldua neither invited the error he

complains of nor “relinquished his objection” to that purported error.
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Under the doctrine of invited error, litigants “may not complain on
appeal of errors that [they] invited or provoked the district court to commit”
unless they show that the error resulted in “manifest injustice.” United States
v. Salazar, 751 F.3d 326, 332 (5th Cir. 2014) (alterations and ellipsis omitted)
(quoting United States v. Wells, 519 U.S. 482, 487-88 (1997)). For example, a
litigant invites error “[b]y explicitly agreeing to” an erroneous procedural
ruling. Id. (citing Walker v. State, 781 P.2d 838, 840 (Okla. Crim. App. 1989)).
“We narrowly construe counsel’s statements” to determine whether a litigant
in fact “invited” the alleged error. United States v. Franklin, 838 F.3d 564,
567 n.1 (5th Cir. 2016).
The Government insists that Espinoza-Bazaldua invited any sentencing
error by asking the district court to depart from the 2015 Guidelines by
considering the applicable range under the 2016 Guidelines.
Government’s

argument

overlooks

that

the

error

But the

Espinoza-Bazaldua

complains of is the district court’s purported miscalculation of his Guidelines
offense level (and consequently, the applicable Guidelines range)—not the
substantive reasonableness of the ultimate sentence imposed.
Criminal sentencing proceeds in two parts. “A district court must ‘begin
all sentencing proceedings by correctly calculating the applicable Guidelines
range.’” Beckles v. United States, 137 S. Ct. 886, 899-900 (2017) (quoting Gall
v. United States, 552 U.S. 38, 49-50 (2007)). The district court then “make[s]
an individualized assessment” about the appropriate sentence, considering all
the factors in 18 U.S.C. § 3553(a) as potential grounds for deviating from the
Guidelines range. Id. at 894 (quoting Gall, 552 U.S. at 49-50). Appellate
review of sentencing errors is similarly bifurcated. A court of appeals “must
first ensure that the district court committed no significant procedural error,
such as failing to calculate (or improperly calculating) the Guidelines range[.]”
Gall, 552 U.S. at 51. “Assuming that the district court’s sentencing decision is
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procedurally sound, the appellate court should then consider the substantive
reasonableness of the sentence imposed under an abuse-of-discretion
standard.” Id.
Here, Espinoza-Bazaldua argues only that the district court procedurally
erred at the first step, and the record is clear that he properly objected to what
he perceived to be an erroneous calculation of his Guidelines range. He not
only objected to the PSR, but also reurged his objections at the sentencing
hearing. Both times, he pressed the same arguments he raises on appeal. See
United States v. Brown, 727 F.3d 329, 340 (5th Cir. 2013) (reviewing alleged
Guidelines errors de novo because the defendants “preserved the[ir] challenges
by filing objections to the PSR and renewing their objections during
sentencing”). The record also shows that defense counsel asked the district
court to consider a departure or variance “given the Court’s ruling”; counsel
shifted his position as advocate precisely because the court determined that the
16-level drug-trafficking-offense enhancement applied.
“[N]arrowly construe[d],” counsel’s statements did not invite the
purported error, see Franklin, 838 F.3d at 567 n.1, and Espinoza-Bazaldua did
not “relinquish” his procedural objection for the same reasons. We therefore
apply our usual de-novo standard of review.
III
Espinoza-Bazaldua argues that the district court erred by applying the
16-level drug-trafficking-offense enhancement under § 2L1.2 for his Indiana
dealing-in-marijuana conviction. The 2015 Guidelines increased an illegal
reentry defendant’s base offense level by 16 if the defendant was
deported “after . . . a conviction for a felony that is . . . a drug trafficking offense
for which the sentence imposed exceeded 13 months [and] the conviction
receives criminal history points under Chapter Four [of the Sentencing
Guidelines.]”

U.S.S.G. § 2L1.2(b)(1)(A)(i) (2015).
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The 2015 Guidelines

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specifically defined “drug trafficking offense” as any offense “that prohibits the
manufacture, import, export, distribution, or dispensing of, or offer to sell a
controlled substance . . . or the possession of a controlled substance . . . with
intent to manufacture, import, export, distribute, or dispense.”

U.S.S.G.

§ 2L1.2 cmt. n.1(B)(iv) (2015). Espinoza-Bazaldua does not dispute that his
sentence exceeded 13 months or that his conviction warrants criminal history
points under Chapter Four. The only issue is whether Indiana Code § 35-484-10 (2005), which outlaws “dealing in marijuana,” is properly considered a
“drug trafficking offense,” as defined by the Guidelines.
A
To determine whether a defendant’s prior conviction is “an offense
defined or enumerated in the Guidelines” that warrants an enhancement, we
usually apply the “categorical” approach.

United States v. Hinkle,

832 F.3d 569, 572 (5th Cir. 2016). The categorical approach asks whether “the
elements of the crime of conviction sufficiently match the elements of [the]
generic [offense], while ignoring the particular facts of the case.” Mathis v.
United States, 136 S. Ct. 2243, 2248 (2016) (emphasis added). When the
statute of conviction “sets out a single (or ‘indivisible’) set of elements to define
a single crime,” our analysis is “straightforward.” Id. If the elements of the
indivisible crime of conviction “are the same as, or narrower than, those of the
generic offense,” the sentencing enhancement applies. Id. “[I]f the crime of
conviction covers any more conduct than the generic offense,” the sentencing
enhancement does not apply—“even if the defendant’s actual conduct . . . fits
within the generic offense’s boundaries.” Id.
But if the defendant’s prior statute of conviction is “divisible”—meaning
it “list[s] elements in the alternative, and thereby define[s] multiple crimes”—
we apply the “modified categorical approach.” Id. at 2249; see also Hinkle,
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832 F.3d at 572-73. Under this approach, if the statute of conviction is broader
than the generic offense, we may consider a “limited class of documents”
(sometimes called “Shepard documents”), such as “the indictment, jury
instructions, or plea agreement and colloquy[,] to determine what crime, with
what elements, a defendant was convicted of.” Mathis, 136 S. Ct. at 2249
(citing Shepard v. United States, 544 U.S. 13, 26 (2005); Taylor v. United
States, 495 U.S. 575, 602 (1990)).
If the statute of conviction doesn’t list alternative elements, but simply
“enumerates various factual means of committing a single element,” the
statute is indivisible, and we cannot use the modified categorical approach to
narrow the offense. Id. at 2249, 2251-52 (emphasis added); accord Hinkle, 832
F.3d at 574. To determine whether a statute is “divisible” or “indivisible,” we
consider several sources, including the statutory text, state court decisions,
and if necessary, a “peek” at the record documents. Mathis, 136 S. Ct. at 225657.
In our court, however, once a district court determines that a defendant’s
statute of conviction meets the corresponding generic definition, the defendant
arguing on appeal that a state statute is nongeneric cannot “rest” on statutory
text, even if the text seems facially broader than the conduct covered by the
generic definition.

United States v. Castillo-Rivera, 853 F.3d 218, 222

(5th Cir. 2017) (en banc).

The defendant “must also show ‘a realistic

probability . . . that the State would apply its statute to conduct that falls
outside the generic definition of the crime.’” Id. (quoting Gonzales v. DuenasAlvarez, 549 U.S. 183, 193 (2007)). The defendant “must at least point to” a
case in which the state applied the statute “in the special (nongeneric) manner

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for which he argues.” 2

Id. (emphasis omitted) (quoting Duenas-Alvarez,

549 U.S. at 193). If the defendant fails to do so, then we will affirm the district
court’s application of the enhancement in that case. 3 See id. at 226.

Since the Supreme Court decided in Esquivel-Quintana v. Sessions, 137 S. Ct. 1562
(2017) that California’s sexual-intercourse-with-a-minor statute, which defines “minor” as
anyone under 18, was categorically broader than the generic offense in which a minor is
younger than 16—the Government appears to have acknowledged that a defendant need not
always present caselaw to show that a state criminalizes more conduct than the generic
offense. In cases remanded to this court in light of Esquivel-Quintana, the Government has
not opposed various defense motions to vacate sentences based on underlying offenses that
are facially broader than the generic offense due to the state’s age specifications. And panels
of this court have agreed, summarily vacating defendants’ sentences despite their failure to
present a case showing that the state actually prosecutes a broader range of conduct than
what’s covered by the generic offense. See, e.g., Unopposed Motion to Summarily Vacate the
Judgment (July 13, 2017), and Order (July 17, 2017), United States v. Flores (No. 15-20613);
Unopposed Motion to Summarily Vacate the Judgment (July 12, 2017), and Order (July 20,
2017), United States v. Aguilar-Hernandez (No. 15-41512).
3 Espinoza-Bazaldua argues that the Supreme Court “unequivocally overruled” our
court’s “heightened ‘realistic probability’ test” in Esquivel-Quintana. There, the Supreme
Court explained that, in applying the categorical approach, “we presume that the state
conviction ‘rested upon the least of the acts’ criminalized by the statute, and then we
determine whether that conduct would fall within the federal definition of the crime.” Id. at
1568 (emphasis added) (alterations and ellipsis omitted) (quoting Johnson v. United States,
599 U.S. 133, 137 (2010)). The Court proceeded to hypothesize about the minimum level of
conduct criminalized under California’s sexual-intercourse-with-a-minor statute. Id. The
Court did not require the defendant to point to any case in which someone was prosecuted
for the hypothetical crime. And in holding that California’s statute was broader than its
federal counterpart, the Court explained that the petitioner, even without pointing to any
California caselaw, “has ‘shown something special about California’s version of the
doctrine’—that the age of consent is 18, rather than 16—and needs no more to prevail.” Id.
at 1572 (second emphasis added) (alteration omitted) (quoting Duenas-Alvarez, 549 U.S. at
191).
But the Supreme Court followed this approach in its earlier categorical-approach
cases as well. In Taylor, the Supreme Court noted that one of Missouri’s burglary statutes
was broader than generic burglary because it criminalized “breaking and entering ‘any booth
or tent, or any boat or vessel, or railroad car[,]’” even though the defendant didn’t present
any caselaw to show that Missouri actually prosecutes those who burgle these structures.
495 U.S. at 602 (quoting Mo. Rev. Stat. § 560.070 (1969)). This was also true in Mathis,
where the Supreme Court explained that Iowa’s burglary statute was facially broader than
generic burglary because it “reaches a broader range of places: ‘any building, structure, [or]
land, water, or air vehicle.’” 136 S. Ct. at 2250 (quoting Iowa Code § 702.12 (2013)). In light
of the Supreme Court’s analyses in Taylor and Mathis, our court nonetheless decided in
Castillo-Rivera that, even if the text seems facially broader than the conduct covered by the
generic definition, defendants must present some case to show a “realistic probability” that
states criminalize a broader range of conduct. We therefore cannot say that Esquivel2

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B
When Espinoza-Bazaldua was charged with his underlying marijuana
offense in 2005, Indiana’s “dealing in marijuana” statute provided:
A person who:
(1) knowingly or intentionally:
(A) manufactures;
(B) finances the manufacture of;
(C) delivers; or
(D) finances the delivery of;
marijuana, hash oil, or hashish, pure or adulterated; or
(2) possesses, with intent to:
(A) manufacture;
(B) finance the manufacture of;
(C) deliver; or
(D) finance the delivery of;
marijuana, hash oil, or hashish, pure or adulterated;
commits dealing in marijuana, hash oil, or hashish[.]
Ind. Code § 35-48-4-10 (2005). 4
With “alternatively phrased” statues such as Indiana’s, Mathis instructs
that our “first task” is to decide divisibility, “determin[ing] whether [the
statute’s] listed items are [divisible] elements [defining multiple potential
crimes] or [alternative factual] means [of committing a single element of an
indivisible crime].” 136 S. Ct. at 2256; accord Hinkle, 832 F.3d at 575 & n.36.
“If they are elements, [we] review the record materials to discover which of the
enumerated alternatives played a part in the defendant’s prior conviction, and
then compare that [offense to] the generic crime.” Mathis, 136 S. Ct. at 2256.

Quintana unequivocally overruled this court’s decision in Castillo-Rivera. See Tech.
Automation Servs. Corp. v. Liberty Surplus Ins. Corp., 673 F.3d 399, 405 (5th Cir. 2012)
(“[F]or a Supreme Court decision to change our Circuit’s law, it ‘must be more than merely
illuminating with respect to the case before [the court]’ and must ‘unequivocally’ overrule
prior precedent.” (quoting Martin v. Medtronic, Inc., 254 F.3d 573, 577 (5th Cir. 2001)).
4 The current version of Indiana Code § 35-48-4-10 is substantially similar to the 2005
provision, but Indiana now criminalizes dealing in salvia, as well as marijuana, hash oil, and
hashish.

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“But if instead they are means . . . [we] may ask only whether the elements of
the state crime and generic offense make the requisite match.” Id. Because
we ultimately decide, however, that Espinoza-Bazaldua has not shown that
Indiana’s dealing-in-marijuana statue, as a whole, is broader than the
Guidelines’ generic definition of “drug trafficking offense,” we will not address
the divisibility issue. 5
As explained above, our court requires a defendant arguing that a state
statute is broader than the generic definition to point to a case in which the
state applied the statute “in the special (nongeneric) manner for which he
argues.” Castillo-Rivera, 853 F.3d at 222 (quoting Duenas-Alvarez, 549 U.S.
at 193). The 2015 Guidelines generically defined “drug trafficking offense” as
any offense “that prohibits the manufacture, import, export, distribution, or
dispensing of, or offer to sell a controlled substance . . . or the possession of a
controlled substance . . . with intent to manufacture, import, export, distribute,
or dispense.” U.S.S.G. § 2L1.2 cmt. n.1(B)(iv) (2015). Here, Espinoza-Bazaldua
argues that because Indiana Code § 35-48-4-10 (2005) criminalizes financing
the manufacture or delivery of marijuana, it is broader than the generic
definition 6 because, in Espinoza-Bazaldua’s view, Indiana outlaws “purchasing

The Government failed to offer any argument about divisibility, stating in a single
sentence of its brief: “the Texas burglary statute is not divisible.”
6 In Lopez v. Lynch, 810 F.3d 484 (7th Cir. 2016), the Seventh Circuit addressed
Indiana’s “dealing-in-cocaine” statute, § 35-48-4-1, which is textually identical to the dealingin-marijuana statute at issue here. Comparing § 35-48-4-1 to the federal Controlled
Substances Act, which prohibits “manufactur[ing], distribut[ing], or dispens[ing], or
possess[ing] with intent to manufacture, distribute, or dispense, a controlled substance,” 21
U.S.C. § 841(a)(1), the Seventh Circuit held that Indiana’s dealing-in-cocaine statute was
facially broader, and thus nongeneric, because Indiana “also criminalizes financing the
manufacture or delivery of illegal drugs.” 810 F.3d at 489. Lopez is unhelpful to us, however,
for two reasons. First, the Seventh Circuit compared one of Indiana’s dealing offenses to the
Controlled Substances Act, while we must compare Indiana’s dealing-in-marijuana offense
to the 2015 Guidelines’ definition of “drug trafficking offense.” The Guidelines’ definition
includes not only the conduct prohibited by the Controlled Substances Act (manufacturing,
distributing, dispensing, or possessing with intent to do those things), but also importing,
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drugs through an intermediary for personal use.” See generally RodriguezNegrete, 772 F.3d at 226 (“The purchase of a drug alone . . . does not fall within
the plain language of a ‘drug trafficking offense’ under U.S.S.G. § 2L1.2.”). For
his read of the statute to comprehend personal-use purchases, EspinozaBazaldua primarily cites Kibler v. State, No. 49A02-0807-CR-589, 904 N.E.2d
730 (Ind. Ct. App. 2009 (unpublished), but also relies on Hyche v. State, 934
N.E.2d 1176 (Ind. Ct. App. 2010), and Vausha v. State, 873 N.E.2d 207 (Ind.
Ct. App. 2007) (unpublished), for support. 7
None of the cases on which Espinoza-Bazaldua relies establishes the
personal-use interpretation of the statute that he argues.

In Kibler, the

Indiana Court of Appeals considered a double-jeopardy challenge to the
defendant’s convictions for “conspiracy to commit dealing in a narcotic drug”
and “dealing in a narcotic drug,” a statute worded identically to Indiana’s
dealing-in-marijuana offense. See § 35-48-4-1; 904 N.E.2d at *2. The State
charged the defendant with “knowingly financ[ing] the delivery of . . . heroin”
because he arranged with a dealer for an intermediary (his friend) to buy ten
balloons of heroin. Id. But even if this analysis were enough to establish that
directly purchasing drugs for personal use violates Indiana’s dealing statute,
subsequent decisions have effectively overruled that holding.

See United

exporting, or offering to sell (plus possessing with intent to import, export, or offer to sell).
U.S.S.G. § 2L1.2 cmt. n.1(B)(iv). Second, the Seventh Circuit decided whether Indiana’s
statute was broader than the comparable generic offense based only on the text of the statute,
which is in tension with our decision in Castillo-Rivera. Again, Castillo-Rivera demands that
a defendant show us a case in which the state applied its statute more broadly than the
generic definition, and Lopez does not satisfy this requirement.
7 Contrary to the Government’s suggestion, our court cannot refuse to consider
unpublished state cases in conducting the categorical inquiry. As we have explained, “an
unpublished state decision [still] demonstrates that a state has in fact applied a statute in a
manner broader than the generic definition of the Guidelines offense.” United States v.
Martinez, 595 F. App’x 330, 334-35 (5th Cir. 2014) (unpublished) (collecting cases in which
our court has looked to unpublished state decisions). “In determining the actual application
of a statute, a conviction is a conviction, regardless of the manner in which it is reported.”
Id. at 335 (quoting Nicanor-Romero v. Mukasey, 523 F.3d 992, 1005 (9th Cir. 2008)).

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States v. Bernel-Aveja, 844 F.3d 206, 210 (5th Cir. 2016) (applying postconviction authoritative decision to determine breadth of state criminal offense
in categorical analysis).
Indeed, the same court of appeals held in Hyche that “mere[] . . .
purchase[s]” are not enough to sustain a dealing conviction in Indiana.
934 N.E.2d at 1177 (emphasis omitted). In Hyche, the defendant arranged to
buy three ecstasy pills for thirty dollars, but at the meeting place, either the
defendant or his associate shot the dealer and killed the dealer’s associate. Id.
The defendant was convicted of felony murder, which required the jury to find
him guilty on the underlying felony of drug dealing. Id. at 1178. The defendant
challenged the sufficiency of the evidence on appeal, and the State argued that
“by agreeing to pay $30.00 for” ecstasy, the defendant “financed the delivery of
the drugs.” Id. at 1179. In holding that the facts were insufficient to support
the defendant’s conviction, the Indiana Court of Appeals explained:
Hyche was charged with dealing in ecstasy, not investing funds to
further the offense of possession of it. He was not charged with
possession with intent to deliver, and the record is devoid of
evidence of any other persons to whom he intended to deliver the
drugs. . . . Instead, he acted merely as a purchaser and not as a
creditor or an investor. . . . Because the record is devoid of any
evidence that Hyche was acting in any capacity other than that of
purchaser, it is insufficient to support a dealing conviction and
therefore a felony murder conviction based thereon.
Id. at 1179-80.
Similarly, in Vausha, the defendant challenged her conviction for
financing the delivery of methamphetamine. 873 N.E.2d at *1. The facts
revealed that the defendant and her husband repeatedly solicited their
neighbor, a confidential informant for the State, to buy meth. Id. at *1-2. The
court highlighted two particular facts that supported the defendant’s
conviction for dealing by financing the delivery of meth.

First, when the

informant—purporting to buy meth on behalf of downstream dealers—asked
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Case: 16-41069

Document: 00514196775

Page: 14

Date Filed: 10/16/2017

No. 16-41069
to pay a lower price, the defendant “took control of the situation,” insisting on
a certain price and telling the confidential informant that his buyers must be
unaccustomed to such high-quality meth. Id. at *2, 5. Second, the defendant
emphasized to the informant the “significant costs and risks” she took on to
manufacture the meth. Id. at *5. She specifically explained that she had to
spend all day buying hundreds of over-the-counter pills to make enough meth
to sell to the informant. Id. at *2, 5. Like the court in Kibler, the court in
Vausha never held that Indiana’s dealing statute encompasses purchases for
personal use, as Espinoza-Bazaldua argues it does.
Because Espinoza-Bazaldua has not pointed us to a case establishing
that Indiana applies its dealing-in-marijuana statute “in the special
(nongeneric) manner for which he argues,” he has not shown a “realistic
probability” that the statute criminalizes a broader range of conduct than the
2015 Guidelines’ generic definition. 8 See Castillo-Rivera, 853 F.3d at 222. We
do not hold that Indiana’s statute, as a matter of law, categorically matches
the 2015 Guidelines’ definition of “drug trafficking offense”; we simply hold
that Espinoza-Bazaldua has not shown that it does not. We therefore AFFIRM
the judgment of the district court.

We do not decide—but nonetheless doubt—the Government’s alternative argument
that any conduct covered by a substantive state statute that could constitute aiding and
abetting deserves an enhancement even though the comparable generic substantive offense
does not cover the same conduct. The plain language of the Guidelines’ commentary instructs
courts to determine first whether the substantive offenses align. If they do, then aiding and
abetting, conspiring to commit, or attempting to commit the state’s substantive offense,
which matches the generic offense, warrants the sentencing enhancement. See U.S.S.G. §
2L1.2 cmt. n.5 (2015); United States v. Henao-Melo, 591 F.3d 798, 804 (5th Cir. 2009) (“[A] §
843(b) violation [facilitating a drug offense] is, therefore, a drug trafficking offense [under §
2L1.2(b)(1)(A)(i)] only if the underlying offense was a drug trafficking offense.” (emphasis
added)); United States v. Cornelio-Pena, 435 F.3d 1279, 1284 (10th Cir. 2006) (“[B]ased on
the Commission’s articulation, offenses similar to aiding and abetting, conspiring, and
attempting to commit offenses that otherwise meet the definition of ‘crime of violence’ are
included in § 2L1.2(b)(1)(A)(ii).” (emphasis added)).
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