United States v. Palacios-Quinonez

United States Court of Appeals
Fifth Circuit
F I L E D
November 29, 2005
Charles R. Fulbruge III
Clerk
In the
United States Court of Appeals
for the Fifth Circuit
_______________
m 05-10323
_______________
UNITED STATES OF AMERICA,
Plaintiff-Appellee.
VERSUS
ISMAEL PALACIOS-QUINONEZ,
Defendant-Appellant,
_________________________
Appeal from the United States District Court
for the Northern District of Texas
m 7:04-CR-12-ALL
______________________________
Before DAVIS, SMITH, and DENNIS,
Circuit Judges.
JERRY E. SMITH, Circuit Judge:
Ismael Palacios-Quinonez appeals his sen-
tence. Finding no reversible error, we affirm.
I.
Palacios-Quinonez is a Mexican national
who pleaded guilty of having reentered the
United States illegally following his removals
in 1995 and 2000. At sentencing, his base of-
fense level of 8 was increased by a sixteen-lev-
el enhancement pursuant to U.S.S.G. § 2L1.2-
(b)(1)(A) (2004) because he had unlawfully re-
mained in the United States after being con-
victed in 1992 of a crime of violence and in
1990 of a felony drug trafficking offense for
which the sentence imposed was greater than
13 months. The enhancement was based on
his California convictions of “possession for

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sale” of cocaine and assault causing great
bodily injury.
Based on the new offense level, Palacios-
Quinonez’s guidelines sentence range was
46-57 months’ imprisonment and two to three
years’ supervised release. He objected to the
16-level enhancement (arguing that his Cali-
fornia offenses were not covered by § 2L1.2-
(b)(1)(A)). He also contended that 8 U.S.C.
§ 1326(b)(1) and (2) should be treated as sep-
arate offenses instead of sentencing factors and
that Almendarez-Torres v. United States, 523
U.S. 224, 239-47 (1998), was incorrectly
decided and should be overruled.
At sentencing, which occurred after the is-
suance of United States v. Booker, 125 S. Ct.
738 (2005), the district court adopted the sen-
tence range found in the presentence report
and sentenced Palacios-Quinonez to 46
months’ imprisonment and two years’ super-
vised release. On appeal, Palacios-Quinonez
raises four issues: (a) whether his California
conviction of aggravated assault qualifies as a
crime of violence; (b) whether a conviction of
“purchase for purposes of sale” of cocaine
constituted a drug trafficking offense under
§ 2L1.2(b)(1)(A); (c) whether § 1326(b)(1)
and (2) should be treated as separate offenses
instead of sentencing factors; and (d) whether
Almendarez-Torres should be overruled.
I.
Palacios-Quinonez contends, for the first
time on appeal, that his California conviction
of possession for sale of cocaine does not
qualify as a drug trafficking offense. In the
district court he objected to this conviction on
the ground that he did not receive a sentence
of thirteen months or more. Because he did
not challenge the application of the six-
teen-level enhancement on the same ground as
he challenges it in this court, he did not pre-
serve the error for appeal, so we review only
for plain error. See United States v. Mares,
402 F.3d 511, 516, 520 (5th Cir.), cert. de-
nied, 126 S. Ct. 43 (2005).
To establish plain error, Palacios-Quinonez
must demonstrate that (1) there is an error,
(2) that is plain by being clear or obvious, and
(3) that affects his substantial rights. United
States v. Olano, 507 U.S. 725, 731-37 (1993).
Absent the enhancement, Palacios-Quinonez’s
guidelines sentencing range would have been
18-24 months, substantially less than the 46
months he received, so an error in the applica-
tion of the enhancement would affect his sub-
stantial rights. See United States v. Garza-Lo-
pez, 410 F.3d 268, 275 (5th Cir.), cert. denied,
126 S. Ct. 298 (2005). Accordingly, the is-
sues for this court are whether the district
court erred in finding that Palacios-Quinonez’s
conviction was for a drug trafficking offense
and whether the error was plain. See Olano,
507 U.S. at 731-37.
Pursuant to § 2L1.2(b)(1)(A)(i), a six-
teen-level enhancement applies if, before re-
moval, the defendant was convicted of a felony
that was “a drug trafficking offense for which
the sentence imposed exceeded 13 months.”
Under this provision, a drug trafficking offense
“means an offense under federal, state, or local
law that prohibits the manufacture, export,
distribution, or dispensing of a controlled
substance (or a counterfeit substance) or the
possession of a controlled substance (or a
counterfeit substance) with intent to manufac-
ture, import, export, distribute, or dispense.”
§ 2L1.2 cmt. n.(1)(B)(iv). To determine
whether a conviction qualifies as a drug traf-
ficking offense under § 2L1.2(b)(1)(A)(i), we
follow Taylor v. United States, 495 U.S. 575,
602 (1990), which directs us, when classifying
a prior offense for sentence enhancement
purposes, to look to the elements rather than

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to the facts underlying the conviction. See
Garza-Lopez, 410 F.3d at 273. But, in some
cases, including those involving a determina-
tion of whether a drug trafficking offense was
committed, a court may also consider three
additional factors: the statutory definition of
the offense, the charging paper, and the jury
instructions. Id.
Both parties agree that Palacios-Quinonez
was convicted under CAL. HEALTH & SAFETY
CODE § 11351, and the government has sup-
plemented the record to show that the convic-
tion was under that statute. One can be con-
victed under that statute if he either “possesses
for sale” or “purchases for purposes of sale”
certain narcotics, including cocaine. Palacios-
Quinonez contends that although “possession
for sale” qualifies as a drug trafficking offense,
“purchase for sale” does not, and thus the en-
hancement was improper because it is impossi-
ble to determine under which prong of the
statute he was convicted. We concur in that
narrow assertion1 but do not agree that “pur-
chase for purposes of sale” does not involve
“possession” with intent to distribute as re-
quired by the guidelines.
We are persuaded by United States v. Es-
trada-Soto, 113 Fed. Appx. 223, 224 (9th Cir.
2004) (mem.), cert. denied, 125 S. Ct. 1430
(2005), that “‘[p]urchase’ of cocaine for the
purpose of sale is not obviously different from,
or broader than,” constructive possession. In
California, “constructive possession includes
maintaining control over, or the right to con-
trol, controlled substances.” Id. (citing People
v. Showers, 440 P.2d 939 (Cal. 1968); Califor-
nia Jury Instructions-Criminal 12.01). Simi-
larly, a completed purchase transfers the “le-
gal” right to control the substance from the
seller to the purchaser or his agents.
Palacios-Quinonez argues that under Cali-
fornia law, namely Armstrong v. Superior
Court, 217 Cal. App. 3d 535, 539-40 (1990),
“it is possible to purchase controlled substanc-
es without actually or constructively possess-
ing them.” This theory is without merit.
First, Armstrong dealt with a situation in-
volving an inchoate offense under a different
statute (possession of a controlled substance).
There, evidence existed that the undercover
police officer selling the drugs was not willing
to let the purchaser exercise his right to con-
trol the drugs. Id. at 538 (noting that the de-
fendant was arrested before delivery of the
drugs and that the seller testified he was not
“going to . . . let a pound of methamphetamine
walk away”). As Armstrong clarifies, its hold-
ing advances the unremarkable proposition
that an (uncompleted) attempt to posses is not
the same as (completed) possession, actual or
constructive:
Here, there is evidence petitioner exercised
some control over the physical setting in
which the sale was to take place. He initi-
ated the sale process of the drugs. He
agreed to meet the officer at a particular lo-
cation. He paid Officer Heggestuen. He
was prepared to take immediate physical
possession of the drugs. We believe, and
defendant agrees, that while such actions
may establish the offense of attempted pos-
session of a controlled substance . . ., they
do not demonstrate he was exercising “con-
trol” over the contraband itself for purposes
1 There is no evidence that Palacios-Quinonez
was convicted under the “possession” prong of the
statute, other than his statement at a hearing in the
instant case that drugs that were not his were found
in his car. That statement is not proper evidence
for this court. The abstract of judgment is also
inconclusive and in any event is not proper ev-
idence for us to consider under Taylor.

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of finding constructive possession. He did
not direct the contraband be moved within
a room. Nor did he take any other action
which exhibits control over the drugs.
Id. at 540.2
In fact, the Armstrong court, id. at 540 n.2,
expressly declined to decide whether someone,
like the defendant there, lacking constructive
possession, could ever be convicted of pur-
chase for sale: “This opinion is not intended to
resolve the viability of a prosecution under the
same or similar facts as a purchase for pur-
poses of sale.” Because of this express dis-
claimer, we do not find persuasive the view
expressed in United States v. Navarro-Coyazo,
108 Fed. Appx. 490, 491 n.1 (9th Cir. 2004)
(mem.), that Armstrong “impl[ied] that a
defendant who arranges to buy, and pays for,
a controlled substance, but who never con-
structively or actually possesses the substance,
could nonetheless be prosecuted for ‘purchas-
ing’ the drug.”3 To the contrary, the Arm-
strong court specifically avoided deciding
whether an agreement to buy, coupled with
payment, constitutes “purchase” of a con-
trolled substance, or whether, instead, it is
merely an “attempted purchase” of a con-
trolled substance.4
Second, Armstrong’s reasoning is consis-
tent with our position that purchase of cocaine
for the purpose of sale is not obviously differ-
ent from, or broader than, constructive posses-
sion. Because “purchase” involves the transfer
of a right to control from the seller to the
buyer, a transaction in which the “transfer” is
not completed is not a purchase, but only an
attempted purchase.
In most cases, the right to control probably
transfers close to the moment when an agree-
ment is reached and payment is delivered, even
if actual delivery has not occurred. In a few
cases, however, where there is an impossibility
of performance, as for instance where the
seller never intends to deliver the drugs or
intends to deliver a substance that is not con-
trolled, a transfer cannot be said to occur.
Only an attempted purchase can be said to oc-
cur in those cases. Therefore, absent the
transfer of the right to control the drugs, there
is neither a “purchase with intent to sell” nor
constructive possession, unless the purchaser
actively performs some other act that indicates
control or right to control.
For instance, if a purchaser paid for seven
vials of cocaine but received seven vials of
sugar, he cannot be said to be guilty of “pur-
chase” of cocaine. In other words, he could
not be said to have purchased cocaine, because
he did not have any legal “right to control” the
nonexistent cocaine. He could be viewed as
2 See also Estrada-Soto, 113 Fed. Appx. at 224
(also distinguishing Armstrong because it dealt
with an inchoate crime). We agree with the Es-
trada-Soto court that People v. Howard, 33 Cal.
App. 4th 1407 (1995), is distinguishable because,
like Armstrong, it involved a different statute and
an inchoate crime (conspiracy).
3 Navarro-Coyazo’s reliance on California Jury
InstructionsSSCriminal 12.01 is also questionable,
because the instructions merely say that either pur-
chase or actual or constructive possession needs to
be proven for purposes of the statute. This does
not exclude the possibility that a purchase actually
involves constructive possession.
4 The decision in United States v . Bowman,
116 Fed. Appx. 840 (9th Cir. 2004) (mem.), is also
distinguishable, because there the government
conceded that a statute that criminalized both pos-
session and purchase for sale was overbroad, see
id. at 843.

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having attempted to purchase cocaine.
We are not suggesting that a simple delay in
delivery of drugs means that one could never
be said to have “purchased” the drugs. Trans-
fer of control does not require an actual “deliv-
ery” of a drug. Although actual delivery helps
prove control, “control” (and thus possession
and purchase) are broader than “delivery.” A
buyer could have “constructive possession”
before actual delivery: “Even within a con-
trolled setting or its equivalent, a defendant
might so directly verbalize disposition or
movement of the drug as to warrant the infer-
ence he possesses it.” Armstrong, 217 Cal.
App.3d at 539.
For instance, buyer B could directly verbal-
ize disposition of the drug directly from A (B’s
seller) to C, a third party who in turn paid B
for the drugs. The purchase would be com-
pleted without B’s ever obtaining actual deliv-
ery. But, because B exercised control of the
goods by selling them, he would be found to
have had constructive possession under Arm-
strong’s guidance.22 Where performance is
impossible, however, the right to control is not
transferred, and neither “purchase” nor “con-
structive possession” can take place.23
Palacios-Quinonez relies on United States
v. Garza-Lopez, 410 F.3d 268 (5th Cir.), cert.
denied, 126 S. Ct. 298 (2005), to suggest that
purchases for sale do not fall within the defini-
tion of a drug trafficking offense. The Garza-
Lopez panel, however, only decided that nei-
ther “the transportation of a controlled sub-
stance for personal use” nor “offers to trans-
port, sell, furnish, administer or give away a
controlled substance” is covered by the defini-
tion of drug trafficking. Id. at 274.
Accordingly, the fact that “possession with
intent to distribute” under the guidelines does
not encompass an “offer to sell” has no effect
on whether it encompasses a “purchase for
sale.” Someone who offers to sell need not
have possession as required by the guidelines.
Rather, one can misrepresent ownership or
control of the offered goods, such as where
one is offering to sell the proverbial Brooklyn
Bridge. By contrast, to accomplish a purchase
of a drug for sale, one must have at least con-
structive possession. This offense, unlike a
mere offer to sell, would satisfy the elements
of “possession with intent to distribute.”
Finally, we reject Palacios-Quinonez’s ar-
gument that the definition of “possession” un-
22 See also United States v. Virciglio, 441 F.2d
1295 (5th Cir. 1971) (finding constructive posses-
sion where defendant never touched a weapon that
he purchased from a third party and arranged to
sell to undercover officer, because the sale to the
officer indicated that defendant had control over the
weapon).
23 Palacios-Quinonez argues that if we read
“purchase for purposes of sale” always to imply
constructive possession, we render the phrase “pur-
chase for purposes of sale” meaningless. We
disagree.
(continued...)
23(...continued)
Possession is distinguishable from purchase.
Palacios-Quinonez would have us hold that pur-
chase is broader than possession; but we reach the
opposite conclusion. A purchaser is someone with
a clear legal right to control acquired through
transfer. A possessor, however, could be, inter
alia, (1) a purchaser, (2) someone with legal right
to contr ol who did not acquire the legal right
through transfer (e.g., manufacturer), (3) someone
with actual control but who does not have a legal
right to control (e.g., a thief), or (4) someone with
actual control who does not have a clear legal right
to control (e.g., a finder).

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der the guidelines does not encompass con-
structive possession because, he contends, un-
der the plain meaning of the word “posses-
sion,” one who exercises possession is not lit-
erally “in possession.” It is well established
that possession encompasses constructive pos-
session.24 Because we conclude that Palacios-
Quinonez was convicted of a drug trafficking
offense that warrants a sixteen-level enhance-
ment, we need not decide whether his aggra-
vated assault conviction constituted a crime of
violence.
II.
Palacios-Quinonez also urges that 8 U.S.C.
§ 1326(b)(1) and (2) should be treated as sep-
arate offenses instead of sentencing factors.
He acknowledges that this argument was re-
jected in Almendarez-Torres, but he asserts
that a “critical component of the Almendar-
ez-Torres holding” was repudiated in Dretke v
. Haley, 541 U .S . 386 (2004). He contends
that Haley suggested that the continuing vitali-
ty of Almendarez-Torres holding is a difficult
constitutional question “to be avoided if possi-
ble.” Relying on Haley, Palacios-Quinonez ar-
gues that this court should construe § 1326-
(b)(1) and (2) as separate offenses to avoid the
difficult constitutional question of the continu-
ing vitality of Almendarez-Torres.
Palacios-Quinonez’s argument based on
Haley, although novel, is without merit. As he
admits, the Court held in Almendarez-Torres,
523 U.S. at 229-47, that § 1326(b)(1) and &
(2) are sentencing factors, not separate of-
fenses, and that they are constitutional. Thus,
construing § 1326(b)(1) and (2) as separate of-
fenses would require us to declare that Al-
mendarez-Torres is overruled. To the con-
trary, we abide by Almendarez-Torres “unless
and until the Supreme Court itself determines
to overrule it.” United States v. Dabeit, 231 F
.3d 979, 984 (5th Cir. 2000) (quotation marks
omitted). The Court did not overrule Almen-
darez-Torres in Haley. See Haley, 541 U .S.
at 395-96.
In the alternative, Palacios-Quinonez avers
that § 1326(b)(1) and (2) are unconstitutional
in light of Apprendi v. New Jersey, 530 U .S .
466 (2000), and that Almendarez-Torres was
wrongly decided. He concedes that his alter-
native argument is foreclosed and raises it to
preserve it for further review. We agree that
the issue is foreclosed.
The judgment of sentence is AFFIRMED.
24 See, e.g., United States v. Virciglio, 441 F.2d
1295 (5th Cir. 1971) (sustaining conviction of pos-
session of unregistered firearm where defendant
exercised only constructive possession); United
States v. Felts, 497 F.2d 80, 82 (5th Cir. 1974)
(sustaining conviction of drug possession with
intent to distribute where defendant had only
constr uctive possession when he arranged for his
friends to sell drugs to undercover police agent
while he went to a concert).

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