United States v. 2006-07-06 | 05-10262 | USA VVILLA-LARA | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 UNITED STATES OF AMERICA, No. 05-10262
Plaintiff-Appellee, D.C. No.
v. CR-04-00111-HDM/  RAJUAN VILLA-LARA,
Defendant-Appellant. OPINION

Appeal from the United States District Court
for the District of Nevada
Howard D. McKibben, District Judge, Presiding
Argued and Submitted
February 17, 2006—San Francisco, California
Filed May 9, 2006
Before: Procter Hug, Jr., Arthur L. Alarcón, and
M. Margaret McKeown, Circuit Judges.
Opinion by Judge Hug
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COUNSEL
Cynthia S. Hahn, Assistant Federal Public Defender, Reno,
Nevada, for the appellant.
Robert Don Gifford, Assistant United States Attorney, Reno,
Nevada, for the appellee.
OPINION
HUG, Circuit Judge:
Defendant Juan Villa-Lara (“Villa-Lara”) appeals his sixty-
four month sentence for unlawful re-entry after deportation in
violation of 8 U.S.C. § 1326(a). Villa-Lara’s sentence was
based on Sentencing Guidelines calculations, including a
sixteen-level enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(i)
for a prior Nevada “drug trafficking offense” felony convic-
tion where the imposed sentence exceeded 13 months.
Villa-Lara argues that this prior conviction under Nevada
Revised Statute (“NRS”) 453.3385 does not qualify as a drug
trafficking offense under Taylor v. United States, 495 U.S.
575 (1990). We agree, and we vacate Villa-Lara’s sentence
and remand for resentencing. We do not reach Villa-Lara’s
other arguments.
Background
On March 1, 1994, Villa-Lara was convicted in Nevada
state court for the felony of possessing a “trafficking quanti-
ty” of a controlled substance in violation of NRS 453.3385.
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He was sentenced to three years imprisonment. Villa-Lara
was deported on October 20, 1995. He was found in Reno,
Nevada without permission on August 9, 2004. Villa-Lara
was indicted on August 24, 2004, for unlawful reentry of a
deported alien in violation of 8 U.S.C. § 1326(a). On October
22, 2004, Villa-Lara pleaded guilty to this charge.
At Villa-Lara’s sentencing on March 28, 2005, the district
court calculated a total offense level of 21 using the Sentenc-
ing Guidelines. The base offense level was 8, plus 16 levels
for the prior Nevada conviction pursuant to U.S.S.G. § 2L1.2,
minus 3 levels for Villa-Lara’s acceptance of responsibility.
The district court calculated a total criminal history of 4 (7
points), using the Nevada conviction, another state conviction
for sale of a controlled substance, and a third state conviction
for possession of drug paraphernalia. Based on the offense
level and criminal history, the district court reached a sentenc-
ing range of 57 to 71 months under the Guidelines. Villa-Lara
was then sentenced to 64 months imprisonment. The judg-
ment of conviction was entered on April 1, 2005, and Villa-
Lara timely filed a notice of appeal on April 13, 2005.
Discussion
We review de novo a district court’s decision that a prior
conviction is a qualifying offense for a sentencing enhance-
ment pursuant to U.S.S.G. § 2L1.2. United States v. Navidad-
Marcos, 367 F.3d 903, 907 (9th Cir. 2004); see United States
v. Cantrell, 433 F.3d 1269, 1279 (9th Cir. 2006).
[1] Under the Taylor “categorical” approach, we first look
only to the fact of conviction and the Nevada statute’s defini-
tion of the offense to determine whether Villa-Lara’s prior
conviction qualifies for the Sentencing Guidelines enhance-
ment. See United States v. Hernandez-Valdovinos, 352 F.3d
1243, 1246 (9th Cir. 2003). If the Nevada statute criminalizes
conduct that would not constitute a qualifying offense under
the Sentencing Guidelines, we then undertake a “modified
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categorical” approach and consider whether certain other doc-
umentation shows that the offense Villa-Lara committed was
within the Guidelines definition. See id. at 1246-47.
[2] Villa-Lara’s conviction under NRS 453.3385 does not
qualify as a drug trafficking offense under the categorical
approach. The statute criminalizes a broader range of conduct
than a drug trafficking offense as defined in the Sentencing
Guidelines. The Sentencing Guidelines’ definition includes an
offense under state law “that prohibits . . . the possession of
a controlled substance (or a counterfeit substance) with intent
to manufacture, import, export, distribute, or dispense.”
U.S.S.G. § 2L1.2 cmt. n.1 (B)(iv) (emphasis added). The
Nevada statute, however, criminalizes mere possession of cer-
tain amounts of controlled substances without proof of any
trafficking intent.1 NRS 453.3385 defines the instant offense
to include the possession of a schedule I controlled substance
other than marijuana, when the quantity is 4 grams or more,
but less than 14 grams. NRS 453.3385(1). This offense is in
sharp contrast to the offense of controlled substance posses-
sion “for the purpose of sale” contained in NRS 453.337(1),
which we held qualifies as a drug trafficking offense under
the Sentencing Guidelines. See United States v. Benitez-Perez,
367 F.3d 1200, 1204 (9th Cir. 2004). Although the title of
NRS 453.3385 uses the phrase “[t]rafficking in controlled
substances,” a statutory title cannot undo or limit the plain
meaning of the statute’s actual text, when there are no ambig-
uous words or phrases therein. See Brotherhood of R.R. Train-
men v. Baltimore & Ohio R.R. Co., 331 U.S. 519, 528-29
(1947).
1Our holding is in accord with the Supreme Court’s recent holding that
a prior conviction for simple possession of a controlled substance is not
a “controlled substance offense” under U.S.S.G. § 4B1.1(a). See Salinas
v. United States, 126 S. Ct. 1675 (2006) (per curiam). “Controlled sub-
stance offense” is defined in pertinent part under U.S.S.G. § 4B1.2(b) with
language identical to the definition of “drug trafficking offense” that is at
issue in the instant appeal.
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Our holding is consistent with the view of the Tenth Cir-
cuit, which recently held that a prior state conviction for pos-
session of between 50 and 2000 pounds of marijuana was not
a drug trafficking offense under the Guidelines. United States
v. Herrera-Roldan, 414 F.3d 1238, 1239 (10th Cir. 2005).
Herrera-Roldan emphasized that its inquiry was confined “to
the terms of the statute of conviction” and therefore not “in-
ferences about an intent to distribute from [the defendant’s]
underlying conduct.” Id. at 1241.2
[3] Turning to the modified categorical approach, no docu-
ments indicate that Villa-Lara actually committed a drug traf-
ficking offense under the Sentencing Guidelines’ definition.
The Information states that Villa-Lara was charged with pos-
session of a “trafficking quantity” of a controlled substance.
This document does not reveal that he had any trafficking
intent. Moreover, the Information identifies the controlled
substance as a cocaine mixture, which is a schedule II sub-
stance that would not even qualify Villa-Lara for conviction
under NRS 453.3385.
[4] We VACATE Villa-Lara’s sentence and REMAND for
resentencing.
2By contrast, the Eleventh Circuit held that a state drug conviction was
a drug trafficking offense under the Guidelines, when the underlying
crime was the possession of 28 grams or more of methamphetamine.
United States v. Madera-Madera, 333 F.3d 1228 (11th Cir. 2005). But
Madera-Madera failed to cite Taylor or undertake a proper Taylor cate-
gorical analysis of only the statutory definition of the prior offense. We
therefore find its holding unpersuasive.
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