UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 02-20713

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

JULIO CESAR RODRIGUEZ-DUBERNEY,

Defendant-Appellant.

Appeal from the United States District Court

For the Southern District of Texas, Houston

March 25, 2003

Before JONES, WIENER, and DeMOSS, Circuit Judges.

DeMOSS, Circuit Judge:

Appellant Julio Cesar Rodriguez-Duberney (“Duberney”) pleaded

guilty to one count of illegally reentering the United States after

deportation in violation of 8 U.S.C. §§ 1326(a) and (b)(2). At

sentencing, the district court applied a si x teen-level upward

adjustment based on Duberney’s prior conviction for a felony drug

trafficking offense u nder the Travel Act. Duberney objected

arguing that t he court should only look at the elements of the

prior offense and not the underlying conduct. The district court

denied Duberney’s objection and subsequently sentenc e d him to

fifty-six months in prison and three years of supervised release.

Duberney timely appealed his sentence to this Court.1 At sentencing, the District Court gave Duberney a one month

credit for time already served in custody of the INS, which

explains his actual sentence which is 1 month below the guideline

range.

2 BACKGROUND

Duberney pleaded guilty to one count of illegal reentry into

the United S tates. The Pre-Sentencing Report (“PSR”) assigned

Duberney a base offense level of eight in accordance with U.S.S.G.

§ 2L1.2(a). The PSR also assigned Duberney a 16-level upward

adjustment to his offense level pursuant to § 2L1.2(b)(1 )(A)(i),

which provides, “If the defendant previously was deported, or

unlawfully remained in the United States, after

. . . a conviction

for a felony that is

. . . a drug trafficking offense for which the

sentence imposed exceeded 13 months,

. . . increase by 16 levels.”

Following an adjustment for acceptance of responsibility,

Duberney’s total offense level was 21, and he was in criminal

history category IV. His Guidelines sentencing range was 57-71

months i n prison and a two to three year term of supervised

release. 1

Duberney’s prior conviction involved a violation of the Travel

Act, 18 U.S.C. § 1952, which prohibits interstate travel and

communication in aid of racketeering. In the prior conviction,

Duberney had been part of a conspiracy to transport marijuana and

cocaine across state lines. Though Duberney was originally

indicted on a charge of conspiracy to possess marijuana and cocaine

with intent to distribute, he was permitted to plead guilty to a

violation of the Travel Act. The indictment in this prior

conviction charged Duberney with interstate transportation in aid

of racketeering “with the intent to promote cocaine and marijuana

trafficki ng.” Duberney was sentenced to 37 months’ imprisonment3

for this prior offense.

In the present case’s sentencing hearing, Duberney objected to

the 16-level upward adjustment. Though he did not dispute the

“underlying conduct” of his prior conviction involved drug

trafficking, Duberney argued that under this Circuit’s

“categorical” approach to classifying offenses for Guidelines

purposes, his prior § 1952 c onviction did not qualify as a drug

trafficking offense under § 2L1.2(b)(1)(A)(i). Duberney reasoned

that because the Travel Act targets interstate or foreign travel

“in aid of” several forms of “unlawful activity”

- many of which do

not involve drugs or drug trafficking - a Travel Act violation is

not a “drug trafficking offense” as defined in the Sentencing

Guidelines. He contended that he thus should not have received the

16-level upward adjustment.

The district court denied Duber ney’s objection. Though the

district court acknowledged that a person could be convicted under

§ 1952 for unlawful activities other than drug trafficking, it

noted that the elements of a § 1952 offense are somewhat determined

by the type of racketeering enterprise being aided. The district

court therefore concluded that because “the charge itself reflects

a drug trafficki ng offense,” his Travel Act conviction warranted

the 16-level increase under § 2L1.2(b)(1)(A). The district court

sentenced Duberney to fifty-six months in prison and three years of

supervised release. Duberney timely appealed his sentence to this

Court.

DISCUSSION

Did the district court err in concluding that Duberney’s prior

conviction warranted a 16-level upward adjustment?

This Court will uphold a sentence unless it is imposed in

violation of law, is based on an erroneous application of the2 The commentary to § 2L1.2 provides that an “aggravated

felony” be defined under 8 U.S.C. § 1101(a)(43). Under that

section, an aggravated felony includes a “crime of violence” as

4 Guidelines, or unreasonably departs from the applicable guideline

range. U

nited States v. Guadardo

, 40 F.3d 102, 103 (5th C ir.

1994). The district court’s application of the Guidelines is

reviewed de novo , and its findings of fact are reviewed for clear

e rror. U

nited States v. DeSantiago-Gonzalez

, 207 F.3d 26 1, 263

(5th Cir. 2000). The 2001 Guidelines apply to the instant case

because Duberney was sentenced on June 17, 2002. U nited States v.

Kimler , 167 F.3d 889, 893 (5th Cir. 1999).

Duberney maintains on appeal that his § 1952 conviction is not

a drug trafficking offense under § 2L1.2(b)(1)(A)(i). Duberney

does not dispute that the underlying conduct in his § 1952

conviction did, in fact, involve the transportation of illegal

drugs. He argues, however, that the district court should have

taken a categ orical approach to the classifying offense and that

his § 1952 conviction does not qualify as a drug trafficking crime

under such an approach because it is possible to commit a § 1952

offense that does not involve drugs. We are, therefore, left with

question of whether or not the district court erred, as a matter of

law, in looking to the conduct underlying Duberney’s prior § 1952

conviction in applying § 2L1.2(b)(1)(A)(i).

Duberney argues that under this Court’s d ecision in U nited

States v. Gracia-Cantu

, 302 F.3d 308 (5th Cir. 2002), we should

employ a “categorical approach” to classify prior offenses for the

purposes of § 2L1.2. In G racia-Cantu

, this Cour t held that the

offense of “injury to a child” is not properly classified as a

“crime of vi olence” for the purposes of § 2L1.2(b)(1)(A) 2 becausedefined under 18 U.S.C. § 16. The Court therefore analyzed what

constitutes a “crime of violence” under § 16.

5 the focus of that p rovision should be on the offense itself as

defined under state law and not by facts underlying the conviction.

Under Texas law, “injury to a child” encompasses both crimes of

omission as well as violent crimes. I d. at 311-12. This Court

concluded, therefore, that, regardless of the underlying facts, the

offense of “injury to a child,” by its nature, is not a cr ime of

violence under §2L1.2, because it could be premised on an omission

rather than on an o vert violent act. I d. at 312-13. Duberney

argues that the “categorical approach” this Court used in

interpreting § 2L1.2(b)(1)(A)(ii) should be extended to

2L1.2(b)(1)(A)(i).

However, Duberney’s reliance on Gracia-Cantu is misplaced.

Gracia-Cantu was premised upon this Court’s decision in U nited

States v. Chapa-Garza

, 243 F.3d 921 (5th Cir. 2001). G racia-Cantu

,

302 F.3d at 312. In Chapa-Garza , this Court noted that 18 U.S.C.

§ 16 (b) defines a “‘crime of violence” as “any other offense that

is a felony and that, by it s nature, involves a substantial risk

that physical force against the person or property of another may

be used in the course of committing the offense.’” I d. a t 923

(quoting 18 U.S.C. §16 (b)). The Court then concluded that:

the words “by its nature” require u s to employ a

categorical approach when determining whether an offense

is a crime of violence. This means that the particular

facts of the defendant's prior conviction do not matter,

e.g. whether the defendant actually did use force against

the person or property of another to commit the offense.

T he proper inquiry is whether a particular defi ned

offense, in the abstract, is a crime of violence under 18

U.S.C. § 16(b).

C hapa-Garza , 243 F.3d at 924 (citation omitted). Therefore, in6

both Gracia-Cantu and Chapa-Garza

, it was the use of the words “by

its nature” that invoked a categorical approach by this Court. S ee

also United States v. DeSantiago-Gonzalez , 207 F.3d 261, 264 (5th

Cir. 2000).

Dub erney’s enhancement was not due to a “crime of violence”

offense but for a drug trafficking offense under §

2L1.2(b)(1)(A)(i). The commentary to the Guidelines defines a drug

trafficking offense broadly as “an offense under federal, state, or

local law that prohibits the manufacture, im port, export,

distribution, or dispensin g of a controlled substance (or a

counterfeit substance) or the possession of a controlled substance

(or c ounterfeit substance) with intent to manufacture, import,

export, distribute, or dispense.” U.S.S.G. § 2L1.2, cmt. app. n.

1(B)(iii). No where does this definition use the words “by its

nature” so as to invoke a categorical approach. We therefore

decline to extend the Gracia-Cantu categorical ap proach to §

2L1.2(b)(1)(A)(i).

Furthermore, we find that Duberney’s prior Travel Act

conviction may be classified as a “drug trafficking offense”

without elaborate considerat ion of his underlying conduct. As

noted above, in Duberney’s prior conviction, he was charged with,

and pleaded guilty to, “interstate transportation in aid of

racketeering with the intent to promote cocaine and marijuana

trafficking.” The district court had only to look at the charging

indictment to find that the prior Travel Act violation was one

involving drug trafficking.

In Taylor v. United States

, the Supreme Court stated that such

an approach is acceptable in a “narrow range of cases.” 495 U.S.

575, 602 (1990). The Supreme Court went on to explain when such a3 This is in no way meant to alter this Court’s decisions in

Chapa-Garza and Gracia-Cantu , in which we have already held that

the precise language involved in the definition of a “crime of

violence” required a categorical approach.

7 situation might arise:

For example, in a State whose burglary statutes include

entry of an automobile as well as a building, if the

indictment or information and jury instructions show that

the defendant w as charged only with a burglary of a

building , and that the jury necessarily had to find an

entry of a building to convict, then the Government

should be allowed to use the conviction for enhancement.

Id. We acknowledged Taylor in United States v. Allen , stating:

We read T aylor as allowing the sentencing court to

consider only the statutory definition of the o ffense,

the charging paper and jury instructions. Any different

rule raises the possibility of mini-trials to determine

the facts underlying a prior offense. Such an “elaborate

factfinding process regarding the defendant’s prior

offenses,” is specifically barred by Taylor

.

282 F.3d 339, 343 (5th Cir. 2002)(citation omitted). From Taylor

and Allen

, we therefore conclude that in the case of a statute such

as the one at issue here, where the underlying conduct may include

conduct that would make the defendant eligible for an enhancement,

the district court doe s not err when it looks to the underlying

indictment for guidance. 3 Just as a district court could look to

the indictment to see if a bur glary was one that involved a

building rather than an automobile, it can also look to the

indictment to see if a Travel Act violation involv ed drug

trafficking. A jury was required to find drug trafficking in order

to convict Duberney of the Travel Act violation, and there is no

danger of the district court undertaking an elaborate fact-finding

process in order to determine the nature of the defendant’s

underlying offense.8 CONCLUSION

Having carefully reviewed the record of this case and the

parties’ respective briefing and for the reasons set forth above,

we conclude that the district court did not err in concluding that

Duberney’s prior conviction justified a 16-level enhancement under

U.S.S.G. § 2L1.2. We therefore AFFIRM the district court’s

decision.

AFFIRMED.