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

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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 1999 Georgia 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. 
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Gutierrez 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 objections 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, we

review the district court’s interpretation and application of the Sentencing

Guidelines de novo and its factual findings for clear error. United States v.

Villanueva, 408 F.3d 193, 202-03 & n.9 (5th Cir.), cert. 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).
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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. Shepard v. United States, 544 U.S. 13, 16-17, 20-21 (2005) (addressing

enhancement under the Armed Career Criminal Act); United 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 of

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 . . . .

GA. CODE ANN. § 16-13-31(e) (1999) (emphasis added). 

Gutierrez argues that, because the statute may be violated by mere

possession of methamphetamine,the district court erred in determining that his

1999 conviction 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 either selling or

possessing 28 grams or more of methamphetamine under GA. CODE ANN. § 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”
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within the meaning of the 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 Basset 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 of any amount of a controlled substance with a mandatory term

of imprisonment of two years and a maximum term of fifteen years. GA. CODE

ANN. § 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 of five years and a maximum of thirty years. GA. CODE ANN. § 16-

13-30(b), (d). The third tier proscribes “trafficking,” which includes possessing

28 grams or more of methamphetamine or amphetamine. GA. CODE ANN. § 16-

13-31. This third tier “aims at a yet more serious offense,” Basset, 370 S.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. GA. CODE ANN. § 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 is 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

States v. Madera-Madera, 333 F.3d 1228, 1232 (11th Cir. 2003). We agree with
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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 offense” 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

of conduct 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

of the 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

of a large quantity of a 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 minimum prison sentence of five years.

21 U.S.C. § 841(b)(1)(B)(viii). The Georgia legislature has determined that

possession of 28 grams or more of methamphetamine is a drug trafficking

offense, essentially declaring as a matter of law that the intent to “traffic” exists

when possession of such an amount occurs. Because GA. CODE ANN. § 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 [GA. CODE ANN. § 16-13-31,]

which punishes possession of a significant, designated quantity of drugs.”
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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 of Apprendi.

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 constitutional.

Although Gutierrez asserts that a majority of the Supreme Court would now

consider Almendarez-Torres to be incorrectly decided in light of Apprendi,“[t]his

court has repeatedly rejected arguments like the one made by [Gutierrez] and

has held that Almendarez-Torres remains binding despite Apprendi.” United

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.