* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-51336

Summary Calendar

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

ALFREDO GUTIERREZ

Defendant-Appellant

Appeal from the United States District Court

for the Western District of Texas

USDC No. 3:07-CR-411-4

Before SMITH, GARZA, and SOUTHWICK, Circuit Judges.

PER CURIAM:*

Alfredo Gutierrez pled guilty to conspiracy to possess with intent to

distribute 100 kilograms or more of marijuana and possession with intent to

distribute 100 kilograms or more of marijuana. Pursuant to U.S.S.G. § 4B1.1,

the career offender provision, the district court sentenced Gutierrez to 262

months in prison, based in part on a previous New Mexico guilty plea conviction

for distribution of marijuana by possession with intentto distribute. On appeal,

Gutierrez asserts that the district court erred in sentencing him as a career

United States Court of Appeals

Fifth Circuit

F I L E D

December 31, 2008

Charles R. Fulbruge III

Clerk
No. 07-51336

2

offender because neither his New Mexico conviction nor his instant conviction

qualifies as a “controlled substance offense.”

A defendant can be classified as a career offender if (1) he was at least 18

years old at the time of the commission of the instant offense; (2) the instant

offense is either a crime of violence or a controlled substance offense; and (3) he

has at least two prior felony convictions that were either crimes of violence or

controlled substance offenses. U.S.S.G § 4B1.1(a). Section 4B1.2(b) of the

Guidelines defines a “controlled substance offense” as 

an offense under federal or state law, punishable by imprisonment

for a term exceeding one year, 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.

The New Mexico statute at issue provides in relevant part, “[e]xcept as

authorized by the Controlled Substances Act, it is unlawful for a person to

intentionally distribute or possess with intent to distribute a controlled

substance or a controlled substance analog. . . .” N.M. Stat. Ann. § 30-31-22(A)

(1978). Gutierrez specifically argues that the statute is overly broad because it

prohibits “controlled substance analogs,” which are not mentioned in the

Guidelines’ definition of a controlled substance. A de novo review, see United

States v. Zuniga-Peralta, 442 F.3d 345, 347 (5th Cir. 2006), reveals that

Gutierrez’s argument is without merit.

Under the categorical approach set forth in Taylor v. United States, 495

U.S. 575, 602 (1990), a district court must look to the elements of a prior offense,

rather than to the facts underlying the conviction, when classifying a prior

offense for sentence enhancement purposes. United States v. Garza-Lopez, 410

F.3d 268, 273-74 (5th Cir. 2005). However, “[i]f a statute contains multiple,

disjunctive subsections, courts may look beyond the statute to certain conclusive

records made or used in adjudicating guilt in order to determine which
No. 07-51336

3

particular statutory alternative applies to the defendant’s conviction.” United

States v. Bonilla-Mungia, 422 F.3d 316, 320 (5th Cir. 2005) (internal quotation

marks omitted). We have held that determining whether a “drug trafficking

offense” occurred categorically falls within the “range of cases where the court

may consider information other than the statutory definition of the offense.”

Garza-Lopez, 410 F.3d at 273. We also must treat the determination of whether

a “controlled substance offense” occurred in the same manner, since the

Guidelines’ definition for “drug trafficking offense”is identicalto the Guidelines’

definition for “controlled substance offense.” See United States v. Ford, 509 F.3d

714, 718 n.2 (5th Cir. 2007) (comparing “controlled substance offense” under

U.S.S.G. § 4B1.2(b) cmt. n.1 and “drug trafficking offense” under U.S.S.G. §

2L1.2 cmt. n. 1(B)(iv)), cert. denied, 129 S. Ct 44 (2008). 

Therefore, in this case, the district court was free to consider the statutory

definition of the offense, the charging paper, jury instructions, the written plea

agreement, the guilty-plea transcript, and factual findings by the trial judge to

which the defendant assented. Bonilla-Mungia, 422 F.3d at 320. The district

court was not permitted, however, to rely on the PSR’s characterization of the

offense for enhancement purposes. See Garza-Lopez, 410 F.3d at 274. 

This court need not determine whether the prohibition of “controlled

substance analogs” makes the New Mexico statute overly broad because

Gutierrez was charged in the state court indictment with conduct that actually

falls within the definition of a controlled substance offense as that term is

defined in § 4B1.2 of the Guidelines. The indictment charged Gutierrez with

“knowingly and intentionally transfer[ring], caus[ing] the transfer, attempt[ing]

to transfer or possess[ing] with intent to transfer marijuana.” According to the

judgment of conviction, Gutierrez pled guilty to the offense of distribution of

marijuana by possession with intent to distribute, a fourth degree felony. The

language of both the indictment and the judgment clearly indicates that

Gutierrez’s conviction involved actual marijuana and not a “controlled substance
No. 07-51336

4

analog.” Because the conduct described in Gutierrez’s state court marijuana

indictment and judgment of conviction is equivalent to the offense of possession

of a controlled substance with intent to distribute, the district court did not err

in enhancing Gutierrez’s offense level under § 4B1.1(a). See Ford, 509 F.3d at

717. 

Gutierrez argues for the first time that the district court erred in relying

exclusively on the statutory definition and the judgment of conviction to

determine whether his New Mexico conviction was a “controlled substance

offense.” He asserts that the district court was required to examine the charging

document and the jury instructions before making a decision. As we have noted,

under the modified categorical approach,the district court was permitted to look

beyond the elements ofthe offense and consider other conclusive documents such

as the charging paper, jury instructions, the written plea agreement, the guiltyplea transcript, and factual findings by the trial judge to which the defendant

assented. See Bonilla-Mungia, 422 F.3d at 320. However, there is no

requirement that the district court must review all of these alternative

documents or must specifically review the charging instrument and the jury

instructions. Here, the district court properly considered the judgment of

conviction, which expressly states that Gutierrez pled guilty to distribution of

marijuana by possession with intent to distribute, and the statutory definition

of the offense to conclude that Gutierrez’s prior New Mexico conviction qualified

as a controlled substance offense. See id. 

In addition, Gutierrez argues for the first time that his instant conviction

for conspiracy to possess with intent to distribute 100 kilograms or more of

marijuana does not qualify as a “controlled substance offense” under the

Guidelines because conspiracy is an inchoate crime. However, a “controlled

substance offense” includes the offenses of aiding and abetting, conspiring, and

attempting to commit such offenses. U.S.S.G. § 4B1.2(b), cmt. n.1. Accordingly,

the district court did not commit error, plain or otherwise, in sentencing
No. 07-51336

5

Gutierrez as a career offender. United States v. Baker, 538 F.3d 324, 332 (5th

Cir. 2008), petition for cert. filed (Dec. 2, 2008) (No. 08-7559).

AFFIRMED.