IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 12-40974

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee

v.

JOSE VICENTE HERNANDEZ-DE AZA,

Defendant-Appellant

Appeal from the United States District Court 

for the Southern District of Texas

USDC No. 7:12-cr-00580-ALL

Before DENNIS, CLEMENT, and SOUTHWICK, Circuit Judges.

PER CURIAM:*

Jose Vicente Hernandez-de Aza (“Hernandez”) appeals the district court’s

determination that his New York conviction for sale of a controlled substance

was a drug trafficking offense. For the following reasons, we AFFIRM.

FACTS AND PROCEEDINGS

Hernandez pleaded guilty without a plea agreement to illegal re-entry into

the United States after a prior deportation, in violation of 8 U.S.C. § 1326(a) and

United States Court of Appeals

Fifth Circuit

F I L E D

July 16, 2013

Lyle W. Cayce

Clerk

* 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.

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(b). The probation officer prepared a presentence report (“PSR”), which listed

three prior New York state offenses: (1) attempted criminal sale of a controlled

substance in the third degree for which Hernandez received 5 years probation;

(2) criminal possession of a controlled substance in the third degree for which he

received 7 to 14 years imprisonment; and (3) criminal sale of a controlled

substance in the fifth degree for which he received 18 months to 3 years

imprisonment. The probation officer determined that the first offense fit the

definition of an “aggravated felony” under 8 U.S.C. § 1101(a)(43)(B) and qualified

for an 8-level increase in offense level under U.S.S.G. § 2L1.2(b)(1)(C); the second

offense fit the definition of a “felony” and qualified for a 4-level increase in

offense level under U.S.S.G. § 2L1.2(b)(1)(D); and the third offense fit the

definition of a “drug trafficking offense” under U.S.S.G. § 2L1.2, cmt. n.1(B)(iv),

and qualified for a 16-level increase in offense level under U.S.S.G. §

2L1.2(b)(1)(A). Pursuant to U.S.S.G. § 2L1.2(b)(1), the probation officer applied

the enhancement that yielded the greatest increase in offense level, and

recommended a 16-level increase for the 2003 conviction for criminal sale of a

controlled substance. 

The probation officer set Hernandez’s base offense level at 8 pursuant to

U.S.S.G. § 2L1.2(a) but recommended a 2-level reduction for acceptance of

responsibility under U.S.S.G. § 3E1.1(a), leaving Hernandez with a total

combined offense level of 22. Hernandez was assessed 8 criminal history points,

which placed him in a criminal history category of IV, resulting in a Guidelines

range of 63 to 78 months. The Government later moved for (and the district

court granted) a one-level reduction in offense level under U.S.S.G. § 3E1.1(b),

leaving Hernandez with a total offense level of 21, and a Guidelines range of 57

to 71 months.

Hernandez filed written objections to the PSR, stating that:

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Mr. Hernandez-De Aza objects to the proposed 16-level and 8-level

enhancements because there is no showing that he was convicted of

a drug trafficking offense as set forth in U.S.S.G. § 2L1.2(b)(1)(A)(i)

and that he was sentenced to a term of imprisonment or placed on

probation, respectively. The Government has not met its burden of

proving with competent evidence that Mr. Hernandez-De Aza was

convicted of a drug trafficking offense and that he was sentenced to

a term of imprisonment exceeding 13 months or that he received

probation, respectively.1 The Government has not produced the

kinds of proof that are acceptable for this purpose under Taylor v.

United States, 495 U.S. 575 (1990) and Shepard v. United States,

125 S.Ct. 1254 (2005). . . . Mr. Hernandez- De Aza hereby requests

any and all written documentation of the alleged conviction made

the subject of the 16-level and 8-level enhancements.

In the alternative, in the event it is determined that Mr.

Hernandez-De Aza was so convicted, it is urged that it has not been

established that same is a drug trafficking offense. No more than a

four-level upward adjustment should be made.

Hernandez also requested a departure from the Guidelines range, urging that

“a sentence well below the recommended guideline range is sufficient to comply

with the requisites of 18 U.S.C. § 3553(a).”

In response to the objections, the probation officer forwarded copies of the

New York judgment, information, and statute of conviction to the district court,

the prosecutor, and defense counsel. At sentencing, defense counsel noted that

he had “now seen the documents,” but argued that the documents were “not

sufficient to establish that, in fact, Mr. Hernandez was convicted of a drug

trafficking offense.” He also argued, in the alternative, that “the elements

required in order to prove a conviction for either of these offenses expands more

broadly than the typical definition of a drug trafficking offense,” although he was

unable to provide a specific example of how the statute was overly-broad.

1 On appeal, Hernandez does not challenge that his sentence was for a term

longer than 13 months.

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The district court ruled that the New York statute categorically qualified

as a drug trafficking offense, and that the documentation provided established

that Hernandez was convicted of violating that statute. The district court

acknowledged that there was no indictment included with the documentation,

but that there was an “information that reflects the charge as being attempted

criminal sale of a controlled substance,” as well as a “Certificate which

references, again, the same statute.” 

The district court calculated the Guidelines range, balanced the § 3553(a)

factors, and sentenced Hernandez to 57 months imprisonment, at the bottom of

the Guidelines range. Hernandez appeals, challenging only the imposition of the

16-level enhancement. 

STANDARD OF REVIEW

“This Court reviews de novo a district court’s conclusion that a prior

conviction constitutes a drug trafficking offense.” United States v. Henao-Melo,

591 F.3d 798, 801 (5th Cir. 2009). Hernandez argues on appeal that the

definition of “sell” under New York law is broader than the conventional

definition of sell, and therefore the statute of conviction is not categorically a

drug trafficking offense. However, before the district court, Hernandez only

argued that the New York offense was not a drug trafficking offense, and that

it “expand[ed] more broadly than the typical definition of a drug trafficking

offense.” Because Hernandez made no argument in support of his position that

the New York offense was overly broad, as he concedes, this court reviews his

claim on appeal for plain error only. United States v. Chavez-Hernandez, 671

F.3d 494, 497 (5th Cir. 2012). Under plain error review, this court evaluates

whether (1) there was an error, (2) which was plain, (3) that affected the

defendant’s substantial rights, and (4) seriously affected the fairness, integrity,

or public reputation of the judicial proceedings. United States v. Olano, 507 U.S.

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725, 732 (1993); United States v. Mudekunye, 646 F.3d 281, 295-96 (5th Cir.

2011).

DISCUSSION

Under the categorical approach of Taylor v. United States, 495 U.S. 575,

602 (1990), “a district court looks 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 (5th Cir. 2005) (citing Taylor, 495 U.S. at 602; United States v.

Gracia-Cantu, 302 F.3d 308, 309 (5th Cir. 2002)). “In a ‘narrow range of cases,’

however, a district court may look beyond the elements of the offense when

making such a determination,” Id. (quoting Taylor, 495 U.S. at 602), if the

statute is a “divisible statute.” Descamps v. United States, 133 S.Ct. 2276, 2281

(2013). If one or more alternative elements of the offense matches the generic

offense, the modified categorical approach permits sentencing courts to consider

supplemental documents to determine which alternative formed the basis of the

defendant’s prior conviction. Id. 

i. Statutory elements

The first question is whether the statutory elements of the New York law

render it, categorically, a drug trafficking offense. Hernandez was convicted of

attempted criminal sale of a controlled substance in the fifth degree in violation

of New York Penal Law § 220.31, which prohibits the “knowing[] and unlawful[]

s[ale of] a controlled substance.” A drug trafficking offense is defined as “an

offense under federal, state, or local law that prohibits the manufacture, import,

export, distribution, or dispensing of, or offer to sell a controlled substance . . .

or the possession of a controlled substance . . . with intent to manufacture,

export, distribute, or dispense.” U.S.S.G. § 2L1.2, cmt. n.1(B)(iv). 

Hernandez argues that New York Penal Law § 220.31 cannot be treated

categorically as a drug trafficking offense because the definition of “sell” under

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the New York law is broader than the conventional definition of the term “sell.” 

See United States v. Ellis, 564 F.3d 370, 372 (5th Cir. 2009) (“If the state

definition for an offense is broader than the generic definition, a conviction

under that state’s law cannot serve as a predicate for the enhancement.”); see

also United States v. Ford, 509 F.3d 714, 721 n.11 (5th Cir. 2007). The New

York statutory definition for the offense provides that “sell” means “to sell,

exchange, give or dispose of to another, or offer or agree to do the same.” New

York Penal Law § 220.00(1) (emphasis added). 

Hernandez relies heavily on United States v. Garza-Lopez to argue that

offers to sell controlled substances do not fit within the Guidelines definition of

a drug trafficking offense. 410 F.3d at 274. However, the Guidelines were

amended in November 2008 to explicitly include offers to sell within the

definition of a drug trafficking offense. United States v. Marban-Calderon, 631

F.3d 210, 212 (5th Cir. 2011). This argument is without merit. 

The proper question is whether, under New York’s definition of “sell,” the

terms “sell,” “exchange,” “give,” and “dispose of” fit within the definition of

“distribution or dispensing” controlled substances, which in turn fit the

definition of a drug trafficking offense.2 Although this circuit has addressed this

issue in analogous contexts, it has not yet answered this question as it applies

to the New York statute in question, and particularly its use of the term “give.” 

See Marban-Calderon, 631 F.3d at 212-13 (holding that a statute that prohibits

“delivery of a controlled substance—whether by active transfer, by constructive

transfer, or by offer to sell—necessarily qualifies as a drug trafficking offense

under the Sentencing Guidelines”); United States v. Fuentes-Oyervides, 541 F.3d

2 Because Section 220.00(1) lists “to sell” as one of the definitions of “sell,” “[i]n

order to give the statute a non-circular definition, the term ‘to sell’ as it is used within the

statutory definition of ‘sell’ must be given its ordinary meaning.” United States v. Stanley, 281

F. App’x 370, 373 (5th Cir. 2008) (unpublished).

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286, 289 (5th Cir. 2008) (when an offense requires “the actual distribution of a

controlled substance rather than mere possession,” all violations of that statute

“qualify under the first part of the Guideline as ‘distribution’ of a controlled

substance” (internal quotation marks omitted)); United States v. Sandoval-Ruiz,

543 F.3d 733, 735 (5th Cir. 2008) (holding that a statute which prohibited

delivery of a controlled substance “fit comfortably within the federal definition

of a drug-trafficking offense”); see also United States v. Wallace, 532 F.3d 126,

129 (2d Cir. 2008) (holding that distribution does not require remuneration); 

United States v. Cormier, 468 F.3d 63, 70 n.3 (1st Cir. 2006) (same); United

States v. Washington, 41 F.3d 917, 919-20 (4th Cir. 1994) (same); Shorter Oxford

English Dictionary, Vol. I 710 (6th ed. 2007) (defining “dispense” as “distribute,

deal out; give out as a share from a general stock” (emphasis added)). But see

United States v. Flores Jimenez, 472 F. App’x 310, 311 (5th Cir. 2012) (assuming,

without deciding, that “giving” drugs to another is not categorically a drug

trafficking offense).

Hernandez also alleges that an offer to give or dispose of a controlled

substance is outside the current definition of the Guidelines, which prohibit only

offers to sell controlled substances. On one hand, “offer to sell” could be

interpreted to include an offer to do any of the activities preceding that clause

in the statutory definition, giving the statute a similar structure to the New

York offense. Under this construction, an offer to give a controlled substance

would fit within the Guidelines definition of a drug trafficking offense, assuming

“give” also fit this definition. See infra. On the other hand, “offer to sell” could

be interpreted disjunctively, excluding mere distribution or dispensation without

monetary gain. 

Because our case law has not yet conclusively answered the question of

whether the act of “giving” or “offering to give” a controlled substance fits the

definition of a drug trafficking offense under the post-2008 version of the

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Guidelines, see, e.g., United States v. Castillo-Estevez, 597 F.3d 238 (5th Cir.

2010) (assuming, without deciding, that a New York statute prohibiting criminal

sale of a controlled substance qualified as a drug trafficking offense under the

amended Guidelines); but see Flores Jimenez, 472 F. App’x at 311 (assuming the

contrary, also without deciding), the district court’s conclusion that the New

York statute categorically qualified as a drug trafficking offense, if in error, did

not rise to the level of an error that was “clear or obvious.” Ellis, 564 F.3d at 377

(quoting Puckett v. United States, 556 U.S. 129, 135 (2009)). Hernandez has not

pointed to any case which conclusively demonstrates that the New York statute

is broader than the definition of a drug trafficking offense under the amended

Guidelines, and the New York statute is capable of varying interpretations, at

least one of which could render it a drug trafficking offense under the categorical

approach. We hold that this issue is subject to reasonable dispute, and therefore

decline to disturb the district court’s ruling on plain error review. See id. at 377-

78.3

CONCLUSION

The judgment of the district court is AFFIRMED.

3 The Supreme Court recently held that a conviction under a Georgia statute

similar to the New York statute at issue here did not amount to a felony under the Controlled

Substances Act. See Moncreiffe v. Holder, 133 S.Ct. 1678 (2013). It is not yet clear how and

to what extent that opinion will influence this circuit’s treatment of drug trafficking offenses

under U.S.S.G. § 2L1.2. See Ford, 509 F.3d at 717 n.2 (acknowledging that the definition of

“controlled substance offense” may inform the definition of “drug trafficking offense”); see also

Davila v. Holder, 381 F. App’x 413, 415 (5th Cir. 2010) (holding that a New York conviction

for criminal sale of a controlled substance was not a felony under the Controlled Substances

Act because the Act did not prohibit offers to sell). Until a more explicit statement is made

by this court, this holding is not sufficient to render the district court’s error “plain.” 

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