### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

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 t he district court’s determination t hat h is Ne w York conviction f or sale of a controlled s ubstance was a drug trafficking offense. For the following reasons, we AFFIRM. FACTS AND PROCEEDINGS H e rnandez pleaded guilty without a p l ea agreement to illegal re-ent ry i nt o the United States after a prior deportation, i n violation of 8 U.S.C. § 1326(a) and U n i t e d S t a te s C o u rt o f A p p e al s

F i f t h C i rc u i t 

### F I L E D J uly16, 2013 Ly l e W . Cay ce Clerk

* Purs uant to 5 T H C I R

. R

. 47. 5, the court has d eterm ined that this op inion should not be p ublis hed and is not p reced ent excep t und er the lim ited circum s tances s et forth in 5 T H C I R

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(b). The probation officer prepared a presentence report (“PS R” ) , w h i c h listed three p rior New York s t a te offenses: (1) attempted criminal sale of a c o ntrolled substance in the third d egree for which Hernandez received 5 y ears probation; (2) c riminal possession of a controlled substance in the third degree for which he received 7 to 14 y ears impri s onment; and (3) criminal sale of a c o ntrolled substance in the fifth degree for which h e received 18 m onths t o 3 y ears imprisonment. The probation officer determined that the f irst offens e fit the definition of a n “aggravated felony” under 8 U.S.C. § 11 0 1 ( a) ( 4 3 ) ( B) a n d qu alified for an 8-level inc r e a s e i n offense level under U.S.S.G. § 2L1.2(b)(1)(C); the second offense f it the definition o f a “felony” and qualified f or a 4-level increase in

o ffense level under U.S.S.G. § 2L1.2(b)(1)(D); and the third offense f i t t h e definition of a “drug trafficking offense” under U.S.S.G. § 2L1.2, cmt. n.1(B)(iv), and qualified for a 16-leve l i n crease 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

- l e v e l increase for the 2003 c o nviction f or criminal sale of a controlled substance. The probation officer set Hernandez’s base o ffense level at 8 pursuant to U.S.S.G. § 2L1.2(a) b ut r ecommended a 2-level reduction for acce p t a n c e of responsibility under U.S.S.G. § 3E1.1(a), l e aving Hernandez with a total combined offense level o f 22. Hernandez was assessed 8 criminal h i story points, which placed him in a criminal history category o f IV, resulting in a Guidelines range of 63 to 78 months. The G o v e r n m ent 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 2 1, 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 t hat he w as convicted of a drug trafficking offense as set forth i n 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 i ts 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 o f imprisonment exceeding 13 m onths or t ha t h e received probation, respectively. 1 T he Government has not prod u c e d t h e kinds of proof that are acceptable for th i s p u r p o se u nder T aylor v. United States , 495 U.S. 575 (1990) and Sh e p a r d v. United S tates , 125 S.Ct. 1254 (2005).

. . . Mr. H ernandez- De Aza hereby requests any and all written documentation of the a l l eged c onviction made the subject of the 16-level and 8-level enhancements.
In the alternative, in th e e v e n t it is determined that Mr. Hernandez-De Aza w as so convicted, i t is urged that it has n ot been established that same is a drug trafficking offense. No more than a four-level upward adjustment should be made.

H ernandez a lso requested a departure f rom the Guidelines range, urging t h a t “a sentence well below the recommended guideline range is sufficient t o comply with the requisites of 18 U.S.C. § 3553(a).” In response t o the objections, the probation officer forwarded copies of the New York judgment, i nformation, and statute o f conviction to the district court, the p rosecutor, and defense counsel. At sentencing, defense counsel noted that he had “now seen the d ocuments,” but argued that the d ocuments were “not suffici e n t to establish that, i n fact, Mr. Hernandez was convicted of a drug trafficking offense.” He also argued, in the alterna t i v e , that “the elements required in order t o prove a conviction for either of these offenses expands more broadly than the t ypical d efinition of a drug trafficking o ffense,” a lthough he was unable to provide a specific example of how the statute was overly-broad.

1 O n ap p eal, H ernand ez do e s n o t c h a l l e nge that his s entence w as f or a term longer than 13 m onths

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The district court ruled that the New York statute categorically qualified

as a drug trafficking o ffense, and that the documentation provided established that Hernandez was convicted o f violating that s t atute. The di s t rict court acknowledged that there was no i ndictment i n cluded with the documentation, but that there was an “information that reflects the charge as being attempted criminal s ale o f a controlled s u b s t a n ce,” as well a s a “Certificate which references, again, the same statute.” The district court calculated the Guidelines range, balanced the § 3553(a) factors, and sentenced H ernandez to 57 months imprisonment, at the bottom of the Guidelines range. Hern a n d e z a p peals, challenging only the imposition of the 16-level enhancement. STANDARD OF REVIEW “This Cou r t r e v i ews de novo a district court’s conclusion t h at a prior conviction constitutes a drug trafficking offense.” United States v. Henao-Melo , 591 F.3d 798, 801 (5th Cir. 2009). H ernandez argues on appeal t h a t the definition of “sell” under New York law is broader t han the c onventional definition of sell, a nd therefore the statute of conviction is not categorically a d r u g t rafficking offense. However, before the district court, Hernandez o n l y argued t hat the New York offense was n o t a drug trafficking offense, and that i t “ expand[ed] m ore b roadly than the typical definition of a drug trafficking offense.” Because Hernandez made no a rgument i n support of his p o sition that th e N e w Yo r k offense was o verly broad, a s he concedes, this court reviews his claim on appeal for plain e rror o nly. Unit e d S t a t es v. Chavez-Hernandez , 671 F.3d 494, 497 (5th C ir. 2012). U nder plain e rror review, this c ourt evaluates whether (1) there was an e rror, (2) which was p l ain, ( 3 ) t h at 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.3 d 2 81, 295-96 ( 5th Cir. 2011). DISCUSSION Under the categorical approach of Taylor v. United States , 495 U.S. 575, 602 (1990), “a district c ourt looks to the e lements of a prior offense, rather than to t he facts underlying the conviction, when classifying a prior offense for sentence enhancement purposes.” United States v. Garza-Lopez , 410 F.3d 268, 2 7 3 (5th Cir. 2005) (citing Taylor , 495 U.S. at 602; United Stat e s 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 e lements of the offense when

m a k i n g s u c h a determination,” Id. (quoting Taylor , 495 U.S. at 602), if the statute is a “divisible s tatute.” Descamps v . United States , 133 S.Ct. 2276, 2281 (2013). If one or more a l ternative elements of the offense matches the generic offense, the modified c ategorical approach permits s entencing c ourts to consider supplemental documents to determine which alternative formed the basis of the defendant’s prior conviction. Id

. i. Statutory elements The first question i s whether the s tatutory elements of the New York law render it, categorically, a drug trafficking offense. Hernandez was convicted of attempted criminal sale o f a controlled substance i n 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 t r a fficking o ffense is defined as “an offense under federal, state, or local law that prohibits the manufacture, import, export, distribution, o r dispensing of, or offer to sell a controlled substance

. . . or the possession of a controlled substance

. . . with i n t e n t t o manufacture, export, distribute, or dispense.” U.S.S.G. § 2L1.2, cmt. n.1(B)(iv). Hernandez argues that New York Penal Law § 2 20.31 cannot be treated categorically as a drug trafficking offense because the d efinition of “sell” under

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the New York law i s broader t han the conventional definition of the term “sell.” Se e United States v. Ellis , 564 F.3d 370, 3 72 (5th Cir. 2009) (“If the state d e f inition for an o ffense is broader t h an the generic definition, a convicti o n under that state’s law c annot serve as a predicate for t he enhancement.”); see also United States v . Ford , 509 F .3d 7 14, 721 n .11 ( 5 t h C i r . 2 0 0 7). The New York statutory definition for the off e n s e p r ovides that “sell” means “to sell, exchange, give or dispose of t o another, o r of f e r o r agree t o do the same.” New York Penal Law § 220.00(1) (emphasis added). Hernandez re l i e s heavily on United States v. Garza-Lopez to argue that offers to sell controlled substances do not f it within the Guidelines definition of

a drug trafficking o ffense. 410 F.3d at 274. However, the Guidelines were amended i n 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, w h i c h i n t urn fit the definition o f a drug trafficking offense. 2 Although this circuit has addressed this issue in analogous contexts, it has not yet answered t his question as i t 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 b y active transfer, by constructive transf e r , or b y offer to sell—necessarily qualifies as a drug trafficking offense under the Sentencing Guidelines”); United S tates v . Fuentes-Oyervides , 541 F.3d

2 Becaus e Section 220. 00( 1) lis ts “to sell” as one of the d ef initions of “s ell, ” “[ i] n ord er to give the s tatute a non- circular d ef inition, th e t e rm ‘to s ell’ as it is us ed w ithin the
s tatutory d ef

inition of ‘s ell’ m us t be given its ord inary m eaning. ” U ni ted S t a tes v . Sta nl ey , 281 F. Ap p ’x 370, 373 ( 5th Cir. 2008) (unp ublis hed)

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286, 289 (5th Cir. 2008) (when an offense requires “the actual distribution of a controlled substance r ather than mere possession,” a ll violations of that statute “qualify under the f

irst part of t h e G uideline as ‘distribution’ of a c o ntrolled substance” (i nt e r n al quotation marks omitted)); United States v. Sandoval-Ruiz , 543 F.3d 733, 7 35 (5th Cir. 2 0 0 8 ) (h o l ding that a statute which prohibited delivery of a controlled substance “fit comfortably within the federal d e finition of a drug-trafficking o ffense”); see also United States v. W a l l a c e , 532 F.3d 126, 129 (2d C ir. 2008) (holding that distribution does not require r e m u n eration); United States v. Cormier , 468 F.3d 63, 7 0 n.3 (1st Cir. 2006) (sam e ) ; U n ited States v . Washington , 41 F.3d 917, 919-20 (4th Cir. 1 994) (same); Shorter Oxford English Dictionary, Vol. I 710 (6th e d. 2007) (defining “dispense” as “distribute, deal out; give out as a share from a general stock” (emphasis ad d e d) )

. B ut see United States v. Flores Jimenez , 472 F. App’x 310, 311 (5th Cir. 2012) (assuming, without deciding, that “giving” drugs to another i s not c ategorically a drug trafficking offense). Hernandez a lso alleges that an offer to give or dispose o f a c o ntrolled substance is outside the current definition of the Guidelines, which prohibit only offers to s ell controlled substances. On one h and, “offer to s el l ” c ould be interpreted to include a n o ffer to do an y o f the activities preceding that clause in the statutory defi n i t i o n, giving the statute a similar structure to the New York offense. Under this construction, an offer t o give a controlled s u b s t a nce would fit within the G uidelines definition of a drug trafficking offense, assuming “give” also fit this definition. See infra

. On the o ther hand, “offer to sell” could b e interpreted disjunctively, excludi n g m e r e di s t rib u ti o n o r di s p e n s a ti o n w ith o u t monetary gain. Because o ur cas e l a w has not y et conclusively answered the question of whether the act o f “ giving” or “offering to give” a controlled substance fits the definition of a drug trafficking offe n s e u nder the post-2008 version of the

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Guidelines, see, e.g., United States v. Castill o-Estevez , 597 F.3d 238 (5th Cir. 2010) (assuming, with o u t d e c i ding, that a New York statute prohibiting c riminal sale o f a controlled substance qua l i f i e d a s a drug trafficking o ffense under the amended Guidelines); b ut see Flores Jimenez , 472 F. App’x at 311 (assuming the

c o n trary, also without deciding), the district c ourt’s conclusion that the N e w York statute categorically qualified as a drug trafficking offense, if in error, did not rise to the level of an error that was “ c lear or obvious.” Ellis , 564 F.3d at 377 (quoting Puckett v. United States , 556 U.S. 129, 135 (2009)). H ernandez has not pointed to any case w hich conclusively demonstrates that the N e w York statute is broader than the d efinition o f a d r ug 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 T h e S u p rem e Court recently held that a conviction und er a G eorg i a s t a t u t e s im ilar to the N ew York s tatute at is s ue here d id not am ount to a felony und er the C ontrolled Subs tances Act. See Moncreif f e v. H ol der , 133 S. Ct. 1678 ( 2013)

. It is not yet clear how and to w hat extent that op inion w ill inf luence this circuit’s treatm ent of d rug traf f ick ing of f ens es und er U

. S. S. G

. § 2L1. 2. See Ford , 509 F. 3d at 717 n. 2 ( ack now led ging that the d ef inition of “controlled s ubs tance of f ens e” may inf

orm the d ef

inition of “d rug traf

f ick ing of f ens e”) ; see a lso D av i la v . H

ol der , 381 F. Ap p ’x 413, 415 ( 5th Cir. 2010) (hold ing that a N ew York conviction f or crim inal s ale of a controlled subs tance w as not a f elony und er the Controlled Subs tances Act becaus e the Ac t d i d not p rohibit of f ers to s ell)

. U ntil a m ore exp licit s tatem ent is m ad e by this court, this hold ing is not s uf f icient to rend er the d is trict court’s error “p lain. ” 8 Case: 12-40974 Document: 00512309262 Page: 8 Date Filed: 07/16/2013