United States Court of Appeals Fifth Circuit 

### FILED July 27, 2007 Charles R. Fulbruge III Clerk 

### IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 06-40486 Summary Calendar

UNITED STATES OF AMERICA Plaintiff–Appellee v. JAIME GUTIERREZ-BAUTISTA Defendant–Appellant

Appeal from the United States District Court for the Southern District of Texas No. 5:05-CR-2210
Before SMITH, WIENER, and OWEN, Circuit Judges. PRISCILLA R. OWEN, Circuit Judge: Defendant-Appellant Jaime Gutierrez-Bautista (Gutierrez) pleaded guilty without a plea agreement to being unlawfully present in the United States after deportation. The Presentence Report (PSR) assigned Gutierrez a base offense level of eight pursuant to U.S.S.G. § 2L1.2(a); a 16-level increase under § 2L1.2(b)(1)(A)(i), because he had a prior 1999Georgia conviction for trafficking methamphetamine; and a three level decrease pursuant to U.S.S.G. § 3E1.1(a) and (b) for acceptance of responsibility. Gutierrez’s criminal history of five resulted in a criminal history category of IV. The applicable guideline advisory sentencing range was 57 to 71 months of imprisonment.No. 06-40486 Summary Calendar

2 G utierrez filed two objections to the PSR, contending that (1) the enhancement of his sentence under 8 U.S.C. § 1326(b) was unconstitutional in view of Apprendi v. New Jersey, 530 U.S. 466 (2000); and (2) the 16-level enhancement was improper, because his prior Georgia conviction was not a “drug trafficking offense” under § 2L1.2(b)(1)(A)(i). The district court overruled Gutierrez’s objecti ons and sentenced him to 60 months of imprisonment. Gutierrez timely filed a notice of appeal. We affirm.
I Gutierrez was sentenced after the Supreme Court issued its decision in United States v. Booker, 543 U.S. 220 (2005), and challenged the enhancement of his sentence under § 2L1.2(b)(1)(A) in the district court. Accordingly, w e review the district court’s interpretation and application of the Sentencing Guidelines de novo and its factual findings for clear error. U nited States v. Villanueva, 408 F.3d 193, 202-03 & n.9 (5th Cir.), c ert. denied, 126 S. Ct. 268 (2005); see also United States v. Villegas, 404 F.3d 355, 359-61 (5th Cir. 2005). A person convicted of being unlawfully present in the United States after deportation faces a 16-level sentencing enhancement if, prior to his deportation, he had been convicted of committing a felony that is “a drug trafficking offense for which the sentence imposed exceeded 13 months.” U.S.S.G. § 2L1.2(b)(1)(A)(i). The commentary to the Guidelines defines “drug trafficking offense”: “Drug trafficking offense”means an offense under federal, state, or local law that prohibits the manufacture, import, 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 manufacture, import, export, distribute, or dispense. § 2L1.2, cmt. n.1(B)(iv).No. 06-40486 Summary Calendar

3 In considering whether a prior conviction qualifies as a drug trafficking offense, we may look to the statutory definition and elements of the offense, the charging papers, a written plea agreement, a guilty-plea transcript, jury instructions, and factual findings by the trial judge to which the defendant assented. S hepard v. United States, 544 U.S. 13, 16-17, 20-21 (2005) (addressing enhancement under the Armed Career Criminal Act); U nited States v. GarzaLopez, 410 F.3d 268, 273 (5th Cir. 2005). The Georgia statute under which Gutierrez was convicted provides, in pertinent part: Any person who knowingly sells, manufactures, delivers, or brings into this state or has possession of 28 grams or more o f methamphetamine, amphetamine, or any mixture containing either methamphetamine or amphetamine, as described in Schedule II, in violation of this article commits the felony offense of trafficking in methamphetamine or amphetamine . . . . G A
. CODE A NN
. § 16-13-31(e) (1999) (emphasis added). Gutierrez argues that, because the statute may be violated by mere possession ofmethamphetamine, the district court erred in determining that his 1999conviction constituted a “drug trafficking offense” under § 2L1.2(b)(1)(A)(i). He urges that the district court erred in determining that he admitted both selling and possessing the methamphetamine when he entered a guilty plea to the Georgia offense. However, we need not decide whether Gutierrez pleaded guilty to both selling and possessing, because a conviction for e ither selling or possessing 28 grams or more of methamphetamine under G A
. CODE A NN . § 16- 13-31(e) constitutes a “drug trafficking offense” under the Sentencing Guidelines. Selling methamphetamine unquestionably constitutes the “distribution or dispensing of a controlled substance.” § 2L1.2, cmt. n.1(B)(iv). Whether a conviction for possession under section 16-13-31(a) is a “drug trafficking offense”No. 06-40486 Summary Calendar

4 within the meaning ofthe Guidelines is a closer question, but we are persuaded by the structure of Georgia’s criminal statutes relating to drug possession and the Georgia courts’ construction ofthose statutes that a conviction under section 16-13-31(a) is a drug trafficking offense. In Bas set v. Lemacks, 370 S.E.2d 146, 148 (Ga. 1988), the Georgia Supreme Court explained that the Georgia legislature has enacted a three-tiered scheme for punishing involvement with illegal drugs. The first tier punishes
mere possession ofany amount ofa controlled substancewith a mandatory term of imprisonment of two years and a maximum term of fifteen years. G A
. CODE A NN
. § 16-13-30(a), (c). The second tier punishes the manufacture, delivery, distribution, dispensing, administering, selling, or possession with intent to distribute any amount of a controlled substance, with a mandatory term of imprisonment offive years and a maximum ofthirty years. G A
. CODE A NN
. § 16- 13-30(b), (d). The third tier proscribes “trafficking,” which includes possessing 28 grams or more of methamphetamine or amphetamine. G A
. CODE A NN
. § 16- 13-31. This third tier “aims at a yet more serious offense,” Basset, 370S.E.2d at 148, and is punishable—in the case of possession of between 28 and 200 grams of methamphetamine—with a mandatory ten-year term of imprisonment and a fine of $200,000. G A
. CODE A NN . § 16-13-31(e)(1). This three-tiered structure reveals that while Georgia does not consider the mere possession of a relatively small amount of controlled substance to be “trafficking,” the possession of a significant quantity of drugs i s considered “trafficking” and is a more serious offense than either simple possession or possession with intent to distribute. The three-tiered structure also recognizes that someone who is in possession of a significant quantity (28 grams or more) of methamphetamine is deemed to have the intent to distribute it

. See United Statesv. Madera-Madera, 333 F.3d 1228, 1232 (11th Cir. 2003). We agree withNo. 06-40486 Summary Calendar

5 the Eleventh Circuit that “[i]n making possession of 28 grams of methamphetamine a ‘trafficking’ offense, Georgia’s trafficking statute necessarily infers an intent to distribute once a defendant possesses a certain amount of drugs.” Id

. As noted, the definition of “drug trafficking o ffense” in § 2L1.2, cmt. n.1(B)(iv) includes “possession of a controlled substance (or a counterfeit substance) with the intent to

. . . distribute

. . . .” The Sentencing Guidelines do not define “drug trafficking offense” by the elements ofthe crime, but by the type ofconduct prohibited by state law. See Madera-Madera, 333 F.3d at 1233. The state statute at issue need not have “intent to distribute” as a specific element ofthe crime, but must merely “prohibit” such conduct. Under federal law, intent to manufacture, distribute or dispense is an element of a drug trafficking offense. See 21 U.S.C. § 841(a). Such an intent may be inferred from possession ofa large quantity ofa controlled substance. See United States v. Gonzales, 121 F.3d 928, 936 (5th Cir. 1997). Under federal law, possession with the intent to
manufacture, distribute, or dispense five grams or more (up to 50 grams) of methamphetamine results in a statutory mi nimum prison sentence offiveyears. 21 U.S.C. § 841(b)(1)(B)(viii). The Georgia legislature has determined that possession of 28 grams or more of methamphetamine i s a drug trafficking offense, essentially declaring as a matter oflawthat the intent to “traffic” exists when possession of such an amount occurs. Because G A
. CODE A NN
. § 16-13-31 prohibits conduct that is equivalent to possession with an intent to distribute, the statute specifies a “drug trafficking offense” for purposes of the Sentencing Guidelines We therefore agree with the Eleventh Circuit that “the federal definition of drug trafficking in the Guidelines is satisfied by [G A
. CODE A NN
. § 16-13-31,] which punishes possession of a significant, designated quantity of drugs.”No. 06-40486 Summary Calendar

6 Madera-Madera, 333 F.3d at 1233. The district court did not err in applying the 16-level sentencing enhancement. II Gutierrez also contends that § 1326(b)’s treatment of prior felony and aggravated felony convictions as sentencing factors, rather than as elements of the offense that must be found by a jury, is unconstitutional in light ofApprendi

. This contention is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998), in which the Supreme Court held that treatment of prior convictions as sentencing factors in § 1326(b)(1) and (2) was constituti onal. Although Gutierrez asserts that a majority of the Supreme Court would now consider Almendarez-Torresto be incorrectly decided in light ofApprendi , “[t]his court has repeatedly rejected arguments like the one made by [Gutierrez] and has held that A lmendarez-Torres remains binding despite Apprendi .” U nited States v. Garza-Lopez, 410 F.3d 268, 276 (5th Cir. 2005). Gutierrez concedes as much, raising this claim to preserve it for further review. III The sentence imposed by the district court is AFFIRMED.