United States v. Arizaga-Acosta

United States Court of Appeals
Fifth Circuit
F I L E D
January 12, 2006
Charles R. Fulbruge III
Clerk
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________________
No. 04-20492
_______________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARTIN ARIZAGA-ACOSTA,
also known as Martin Anuzaca-Acosta
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
________________________________________________________________
Before JONES, DeMOSS, and CLEMENT, Circuit Judges.
PER CURIAM:
Martin Arizaga-Acosta pleaded guilty to attempting to
enter the United States unlawfully after deportation for an
aggravated felony. Arizaga-Acosta now appeals his sentence,
arguing that the district court erred in treating his prior
conviction for possession of a listed chemical with intent to
manufacture a controlled substance as a “drug-trafficking offense”
for purposes of enhancing his sentence under U.S.S.G. § 2L1.2. In
support of his argument, Arizaga-Acosta contends that: 1) the
commentary to the U.S.S.G. § 2L1.2 definition of “drug trafficking
offense” does not include possession of a listed chemical with
intent to manufacture; 2) the district court erred in relying on

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United States v. Calverley in determining that Arizaga-Acosta’s
prior conviction was effectively a conviction for attempt to
manufacture a controlled substance; and 3) the structure of the
Sentencing Guidelines, specifically changes in the definitions of
drug trafficking and controlled substance offenses in U.S.S.G.
§§ 2L1.2 and 4B1.2, enhance his argument that his prior conviction
does not fall under § 2L1.2.
On appeal from sentencing decisions, we review the
district court’s application of the sentencing guidelines de novo.
United States v. Montgomery, 402 F.3d 482, 485 (5th Cir. 2005).
See also United States v. Villegas, 404 F.3d 355 (5th Cir. 2005).
Arizaga-Acosta argues that Section 2L1.2's definition of a “drug
trafficking offense” does not encompass his prior federal
conviction for conspiracy to possess a listed chemical (ephedrine)
with intent to manufacture methamphetamine. See U.S.S.G. § 2L1.2,
cmt. n.1(B)(iv). At the sentencing hearing, the district court
relied on United States v. Calverley, 11 F.3d 505, 512 (5th Cir.
1993), vacated en banc, 37 F.3d 160 (5th Cir. 1994), to determine
that Arizaga-Acosta’s prior offense was substantially similar to
the offense of attempt to manufacture a controlled substance, which
is included within § 2L1.2's definition of drug trafficking. The
district court decided to rely on the persuasive authority of
Calverley, despite its subsequent vacatur, because it reasoned that
the en banc decision did not reach a different result on the issue
of whether possession of a listed chemical with intent to

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manufacture a controlled substance was substantially similar to
attempted manufacturing of a controlled substance.
The district court’s reliance on Calverley was
understandable, but ultimately incorrect in light of subsequent
developments. The en banc court in Calverley indeed held that a
district court had not plainly erred when it considered a
conviction for possession of a listed chemical with intent to
manufacture a controlled substance as a controlled substance
offense for purposes of section 4B1.2 of the Sentencing Guidelines.
Calverley, 37 F.3d at 164-65. In so holding, part of the en banc
court’s rationale was that the definition of a controlled substance
offense had recently narrowed because of an amendment to the
Guidelines. Id. Accordingly, the en banc court did not endorse
the district court’s holding; rather, in light of the recent
amendment, it held that the legal question was sufficiently
unclear, and therefore the district court could not be said to have
committed plain error. Id. at 165.
Subsequent to this court’s decision in Calverley, the
Sentencing Commission amended the Guidelines again specifically to
include possession of a listed chemical with intent to manufacture
a controlled substance within the definition of “controlled
substance offense” provided in U.S.S.G. § 4B1.2. While amending
that Guideline, however, the Sentencing Commission declined to
similarly amend the definition of “drug trafficking offense” in
U.S.S.G. § 2L1.2. Thus, although the general definitions of a

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drug-related offense are the same in both guidelines, only § 4B1.2
includes the offense of possession with intent to manufacture.
By relying on the panel’s reasoning in Calverley, and
concluding that the meaning of the phrase “drug trafficking
offense” and “controlled substance offense” is the same in both
sections of the Guidelines, the district court overlooked the
Sentencing Commission’s more recent decision to use different
definitions. See Bates v. United States, 522 U.S. 23, 29-30, 118
S. Ct. 285, 290 (1997) (noting that when a law includes particular
language in one section, but omits it in another section of the
same law, it is generally presumed that the enacting body acts
“intentionally and purposely in the disparate inclusion or
exclusion”). Additionally, the Application Notes from § 4B1.2 of
the Guidelines specifically declare that the Notes are to be used
for the purposes of that Guideline. U.S.S.G. § 4B1.2 cmt. n.1.
Therefore, it is only “[f]or purposes of [§ 4B1.2]” that
“[u]nlawfully possessing a listed chemical with intent to
manufacture a controlled substance (21 U.S.C. § 841(d)(1)) is a
‘controlled substance offense.’” U.S.S.G. § 4B1.2 cmt. n.1. As
noted supra, under § 2L1.2, the Application Notes do not contain
the language specifically included under § 4B1.2 cmt. n.1. By
importing the language of the Application Notes from § 4B1.2 of the
Guidelines into § 2L1.2, the district court contradicted the
express language of the Guidelines.

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The district court also briefly mentioned United States
v. Rodriguez-Duberney, 326 F.3d 613 (5th Cir. 2003) in deciding to
approach § 2L1.2's “drug trafficking offense” definition broadly
and include possession of a listed chemical with intent to
manufacture within the definition. As the district court pointed
out, however, Rodriguez-Duberney is not directly on point, and does
not provide a sufficient basis for the district court’s
determination.
In sum, Arizaga-Acosta’s prior conviction for possession
of a listed chemical with intent to manufacture a controlled
substance does not qualify as a “drug-trafficking offense” for
purposes of enhancing his sentence under § 2L1.2 of the Guidelines.
For the purpose of possible future review, Arizaga-Acosta
also argues that after Apprendi v. New Jersey, 530 U.S. 466, 120 S.
Ct. 2348 (2000), the viability of Almendarez-Torres v. United
States, 523 U.S. 224, 118 S. Ct. 1219 (1998), is in doubt and that
Almendarez-Torres should be overruled. This court must follow the
precedent set in Almendarez-Torres “unless and until the Supreme
Court itself determines to overrule it.” United States v.
Mancia-Perez, 331 F.3d 464, 470 (5th Cir. 2003) (internal quotation
and citation omitted).
In his reply brief, filed after United States v. Booker,
543 U.S. 220, 125 S. Ct. 738 (2005), Arizaga-Acosta argues that,
even under plain error review, his sentence should be vacated
because he was sentenced under mandatory Sentencing Guidelines.

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Because Arizaga-Acosta’s sentence has been vacated, we need not
consider Arizaga-Acosta’s Booker argument. See Villegas, 404 F.3d
at 365.
For the foregoing reasons, the sentence is VACATED and
REMANDED for resentencing in accordance herewith.

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