IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 16-41069

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee 

v. 

JUAN JOSE ESPINOZA-BAZALDUA, 

 Defendant - Appellant 

Appeal from the United States District Court

 for the Southern District of Texas 

Before HIGGINBOTHAM, GRAVES, and HIGGINSON, Circuit Judges. 

STEPHEN A. HIGGINSON, Circuit Judge:*

Juan Jose Espinoza-Bazaldua appeals the 37-month sentence he 

received after pleading guilty to illegal reentry. He argues that the district 

court incorrectly calculated his Guidelines offense level by applying a 16-level 

increase for his underlying conviction in Indiana of “dealing in marijuana.” 

According to Espinoza-Bazaldua, this conviction is not a “drug trafficking 

offense” as defined by the United States Sentencing Guidelines. Because 

Espinoza-Bazaldua has not demonstrated that Indiana’s “dealing-in-

 

* 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.

United States Court of Appeals

Fifth Circuit

FILED

October 16, 2017

Lyle W. Cayce

Clerk

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2 

marijuana” statute criminalizes more conduct than that captured by the 

Guidelines’ generic definition of “drug trafficking offense,” we affirm.1

I 

Espinoza-Bazaldua pleaded guilty to one count of illegal reentry in 

violation of 8 U.S.C. §§ 1326(a), (b). Before his scheduled sentencing hearing, 

the Probation Office—properly relying on the 2015 Sentencing Guidelines—

calculated Espinoza-Bazaldua’s offense level according to § 2L1.2, the 

sentencing guideline for “unlawfully entering or remaining in the United 

States.” The 2015 version of § 2L1.2 directed courts to apply a base offense 

level of 8 and to add 16 if the defendant was deported after “a conviction for a 

felony that is . . . a drug trafficking offense for which the sentence imposed 

exceeded 13 months [and] the conviction receives criminal history points under 

Chapter Four [of the Sentencing Guidelines.]” U.S.S.G. § 2L1.2(b)(1)(A)(i)

(2015). In its Presentence Investigation Report (PSR) to the district court, the 

Probation Office assigned Espinoza-Bazaldua this 16-level increase because he 

was deported after a felony conviction under Indiana Code § 35-48-4-10 (2005)

for “[d]ealing in marijuana.” According to the PSR, Espinoza-Bazaldua was 

convicted of one count of dealing marijuana and sentenced to four years’ 

imprisonment. 

Espinoza-Bazaldua objected in writing to the PSR’s calculation of his 

total offense level, arguing that because Indiana’s dealing-in-marijuana 

statute is broader than the Guidelines’ definition of “drug trafficking offense” 

and indivisible, the 16-level increase does not apply. Specifically, EspinozaBazaldua argued that Indiana’s statute was broader than the Guidelines’ 

 

1 The parties completed briefing in this case in December 2016, before our court 

decided United States v. Castillo-Rivera, 853 F.3d 218 (5th Cir. 2017) (en banc). Because 

Castillo-Rivera bears on this appeal, as discussed below, we received supplemental briefing 

from the parties on the requirements of Castillo-Rivera and how they apply here. 

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3 

definition, which includes manufacturing and delivering controlled 

substances, because Indiana additionally criminalizes financing the 

manufacture or delivery of drugs. He also argued that because Indiana law 

treats manufacturing, delivering, and financing as alternative factual means 

of committing the same offense, the statute is indivisible. Finally, EspinozaBazaldua argued that if the district court applied the 16-level increase, his 

offense level would be “excessive.” He noted that under the then-forthcoming 

2016 Guidelines,his applicable advisory range would be 30 to 37 months, 

rather than the PSR’s calculation of 46 to 57 months under the 2015 

Guidelines. 

The Probation Office responded to the objections that whether EspinozaBazaldua’s dealing-in-marijuana conviction was a “drug trafficking offense” 

was a “legal issue . . . deferred to the Court for further consideration.” The 

Probation Office also confirmed that Espinoza-Bazaldua correctly calculated 

what range would apply under the 2016 Guidelines, and that if applied, the 

2016 Guidelines “would benefit” him. 

At sentencing, Espinoza-Bazaldua reurged his objection that because 

Indiana’s dealing-in-marijuana statute was broader than the Guidelines’ 

definition of “drug trafficking offense” and indivisible, it could not be used to 

increase his offense level. The district court overruled the objection, 

explaining: “[K]nowing[ly] or intentional[ly] provi[ding] . . . funding for either 

the manufacture or delivery [of drugs] would constitute aiding and abetting in 

the drug trafficking offense. That is encompassed by . . . the sentencing 

guidelines. So the objection is overruled.” 

In response to the district court’s overruling the objection, EspinozaBazaldua’s counsel said:

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Your Honor, given the Court’s ruling, I would ask the Court to, as 

I’ve stated[] in our departure request[,] to consider that the weight 

attached to the 16-level enhancement in this case is excessive. 

. . . . 

His prior conviction for illegal reentry [resulted in] a sentence of 

24 months at that time. . . . I understand graduated punishment 

but I would ask the Court to consider a sentence that’s graduated 

and not a sentence that would be such a precipitous increase from 

the last sentence that he received. 

By my calculation under the guidelines as they would take effect 

in November, his range would be 30 to 37 months. I would ask the 

Court to consider imposing a sentence in the guideline range that 

would come into effect in November. 

The district court then explained that it was “grant[ing Espinoza-Bazaldua] a 

departure [to] sentence [him] within what would otherwise be the applicable 

guideline range come November[.]” In sentencing Espinoza-Bazaldua to a 

term of 37 months’ imprisonment, the court noted that this was “more, 

obviously, than the 24 [months] that you had served previously but not quite 

what you’re facing now.” 

 Espinoza-Bazaldua timely appealed, arguing only that the district court 

erred by applying the 16-level “drug trafficking offense” enhancement for his 

Indiana conviction for dealing in marijuana. 

II

“We review the district court’s interpretation and application of the 

Sentencing Guidelines de novo.” United States v. Rodriguez-Negrete, 772 F.3d 

221, 224 (5th Cir. 2014). This includes whether a prior conviction constitutes 

a “drug trafficking offense” under § 2L1.2. See id. at 224-25.

The Government argues that, in this case, we should find EspinozaBazaldua’s argument waived under the doctrine of invited error, or at least 

apply plain-error review because Espinoza-Bazaldua “relinquished his 

objection.” We find that Espinoza-Bazaldua neither invited the error he 

complains of nor “relinquished his objection” to that purported error. 

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Under the doctrine of invited error, litigants “may not complain on 

appeal of errors that [they] invited or provoked the district court to commit” 

unless they show that the error resulted in “manifest injustice.” United States 

v. Salazar, 751 F.3d 326, 332 (5th Cir. 2014) (alterations and ellipsis omitted) 

(quoting United States v. Wells, 519 U.S. 482, 487-88 (1997)). For example, a 

litigant invites error “[b]y explicitly agreeing to” an erroneous procedural 

ruling. Id. (citing Walker v. State, 781 P.2d 838, 840 (Okla. Crim. App. 1989)). 

“We narrowly construe counsel’s statements” to determine whether a litigant 

in fact “invited” the alleged error. United States v. Franklin, 838 F.3d 564, 

567 n.1 (5th Cir. 2016). 

The Government insists that Espinoza-Bazaldua invited any sentencing 

error by asking the district court to depart from the 2015 Guidelines by 

considering the applicable range under the 2016 Guidelines. But the 

Government’s argument overlooks that the error Espinoza-Bazaldua 

complains of is the district court’s purported miscalculation of his Guidelines 

offense level (and consequently, the applicable Guidelines range)—not the 

substantive reasonableness of the ultimate sentence imposed. 

Criminal sentencing proceeds in two parts. “A district court must ‘begin 

all sentencing proceedings by correctly calculating the applicable Guidelines 

range.’” Beckles v. United States, 137 S. Ct. 886, 899-900 (2017) (quoting Gall 

v. United States, 552 U.S. 38, 49-50 (2007)). The district court then “make[s] 

an individualized assessment” about the appropriate sentence, considering all 

the factors in 18 U.S.C. § 3553(a) as potential grounds for deviating from the 

Guidelines range. Id. at 894 (quoting Gall, 552 U.S. at 49-50). Appellate 

review of sentencing errors is similarly bifurcated. A court of appeals “must 

first ensure that the district court committed no significant procedural error, 

such as failing to calculate (or improperly calculating) the Guidelines range[.]” 

Gall, 552 U.S. at 51. “Assuming that the district court’s sentencing decision is 

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procedurally sound, the appellate court should then consider the substantive 

reasonableness of the sentence imposed under an abuse-of-discretion 

standard.” Id.

Here, Espinoza-Bazaldua argues only that the district court procedurally 

erred at the first step, and the record is clear that he properly objected to what 

he perceived to be an erroneous calculation of his Guidelines range. He not 

only objected to the PSR, but also reurged his objections at the sentencing 

hearing. Both times, he pressed the same arguments he raises on appeal. See 

United States v. Brown, 727 F.3d 329, 340 (5th Cir. 2013) (reviewing alleged 

Guidelines errors de novo because the defendants “preserved the[ir] challenges 

by filing objections to the PSR and renewing their objections during 

sentencing”). The record also shows that defense counsel asked the district 

court to consider a departure or variance “given the Court’s ruling”; counsel 

shifted his position as advocate precisely because the court determined that the 

16-level drug-trafficking-offense enhancement applied. 

“[N]arrowly construe[d],” counsel’s statements did not invite the 

purported error, see Franklin, 838 F.3d at 567 n.1, and Espinoza-Bazaldua did 

not “relinquish” his procedural objection for the same reasons. We therefore 

apply our usual de-novo standard of review. 

III 

Espinoza-Bazaldua argues that the district court erred by applying the 

16-level drug-trafficking-offense enhancement under § 2L1.2 for his Indiana 

dealing-in-marijuana conviction. The 2015 Guidelines increased an illegal 

reentry defendant’s base offense level by 16 if the defendant was 

deported “after . . . a conviction for a felony that is . . . a drug trafficking offense 

for which the sentence imposed exceeded 13 months [and] the conviction 

receives criminal history points under Chapter Four [of the Sentencing 

Guidelines.]” U.S.S.G. § 2L1.2(b)(1)(A)(i) (2015). The 2015 Guidelines 

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specifically defined “drug trafficking offense” as any offense “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, import, export, distribute, or dispense.” U.S.S.G. 

§ 2L1.2 cmt. n.1(B)(iv) (2015). Espinoza-Bazaldua does not dispute that his 

sentence exceeded 13 months or that his conviction warrants criminal history 

points under Chapter Four. The only issue is whether Indiana Code § 35-48-

4-10 (2005), which outlaws “dealing in marijuana,” is properly considered a 

“drug trafficking offense,” as defined by the Guidelines. 

A 

To determine whether a defendant’s prior conviction is “an offense 

defined or enumerated in the Guidelines” that warrants an enhancement, we 

usually apply the “categorical” approach. United States v. Hinkle, 

832 F.3d 569, 572 (5th Cir. 2016). The categorical approach asks whether “the 

elements of the crime of conviction sufficiently match the elements of [the] 

generic [offense], while ignoring the particular facts of the case.” Mathis v. 

United States, 136 S. Ct. 2243, 2248 (2016) (emphasis added). When the 

statute of conviction “sets out a single (or ‘indivisible’) set of elements to define 

a single crime,” our analysis is “straightforward.” Id. If the elements of the 

indivisible crime of conviction “are the same as, or narrower than, those of the 

generic offense,” the sentencing enhancement applies. Id. “[I]f the crime of 

conviction covers any more conduct than the generic offense,” the sentencing 

enhancement does not apply—“even if the defendant’s actual conduct . . . fits 

within the generic offense’s boundaries.” Id. 

But if the defendant’s prior statute of conviction is “divisible”—meaning 

it “list[s] elements in the alternative, and thereby define[s] multiple crimes”—

we apply the “modified categorical approach.” Id. at 2249; see also Hinkle, 

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832 F.3d at 572-73. Under this approach, if the statute of conviction is broader 

than the generic offense, we may consider a “limited class of documents” 

(sometimes called “Shepard documents”), such as “the indictment, jury 

instructions, or plea agreement and colloquy[,] to determine what crime, with 

what elements, a defendant was convicted of.” Mathis, 136 S. Ct. at 2249

(citing Shepard v. United States, 544 U.S. 13, 26 (2005); Taylor v. United 

States, 495 U.S. 575, 602 (1990)). 

If the statute of conviction doesn’t list alternative elements, but simply 

“enumerates various factual means of committing a single element,” the 

statute is indivisible, and we cannot use the modified categorical approach to 

narrow the offense. Id. at 2249, 2251-52 (emphasis added); accord Hinkle, 832 

F.3d at 574. To determine whether a statute is “divisible” or “indivisible,” we 

consider several sources, including the statutory text, state court decisions, 

and if necessary, a “peek” at the record documents. Mathis, 136 S. Ct. at 2256-

57.

In our court, however, once a district court determines that a defendant’s 

statute of conviction meets the corresponding generic definition, the defendant 

arguing on appeal that a state statute is nongeneric cannot “rest” on statutory 

text, even if the text seems facially broader than the conduct covered by the 

generic definition. United States v. Castillo-Rivera, 853 F.3d 218, 222 

(5th Cir. 2017) (en banc). The defendant “must also show ‘a realistic 

probability . . . that the State would apply its statute to conduct that falls 

outside the generic definition of the crime.’” Id. (quoting Gonzales v. DuenasAlvarez, 549 U.S. 183, 193 (2007)). The defendant “must at least point to” a 

case in which the state applied the statute “in the special (nongeneric) manner 

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for which he argues.”2 Id. (emphasis omitted) (quoting Duenas-Alvarez, 

549 U.S. at 193). If the defendant fails to do so, then we will affirm the district 

court’s application of the enhancement in that case.3 See id. at 226.

 

2 Since the Supreme Court decided in Esquivel-Quintana v. Sessions, 137 S. Ct. 1562 

(2017) that California’s sexual-intercourse-with-a-minor statute, which defines “minor” as 

anyone under 18, was categorically broader than the generic offense in which a minor is 

younger than 16—the Government appears to have acknowledged that a defendant need not 

always present caselaw to show that a state criminalizes more conduct than the generic 

offense. In cases remanded to this court in light of Esquivel-Quintana, the Government has 

not opposed various defense motions to vacate sentences based on underlying offenses that 

are facially broader than the generic offense due to the state’s age specifications. And panels 

of this court have agreed, summarily vacating defendants’ sentences despite their failure to 

present a case showing that the state actually prosecutes a broader range of conduct than 

what’s covered by the generic offense. See, e.g., Unopposed Motion to Summarily Vacate the 

Judgment (July 13, 2017), and Order (July 17, 2017), United States v. Flores (No. 15-20613); 

Unopposed Motion to Summarily Vacate the Judgment (July 12, 2017), and Order (July 20, 

2017), United States v. Aguilar-Hernandez (No. 15-41512). 3 Espinoza-Bazaldua argues that the Supreme Court “unequivocally overruled” our 

court’s “heightened ‘realistic probability’ test” in Esquivel-Quintana. There, the Supreme 

Court explained that, in applying the categorical approach, “we presume that the state 

conviction ‘rested upon the least of the acts’ criminalized by the statute, and then we 

determine whether that conduct would fall within the federal definition of the crime.” Id. at 

1568 (emphasis added) (alterations and ellipsis omitted) (quoting Johnson v. United States, 

599 U.S. 133, 137 (2010)). The Court proceeded to hypothesize about the minimum level of 

conduct criminalized under California’s sexual-intercourse-with-a-minor statute. Id. The 

Court did not require the defendant to point to any case in which someone was prosecuted 

for the hypothetical crime. And in holding that California’s statute was broader than its 

federal counterpart, the Court explained that the petitioner, even without pointing to any 

California caselaw, “has ‘shown something special about California’s version of the 

doctrine’—that the age of consent is 18, rather than 16—and needs no more to prevail.” Id.

at 1572 (second emphasis added) (alteration omitted) (quoting Duenas-Alvarez, 549 U.S. at

191).

But the Supreme Court followed this approach in its earlier categorical-approach 

cases as well. In Taylor, the Supreme Court noted that one of Missouri’s burglary statutes 

was broader than generic burglary because it criminalized “breaking and entering ‘any booth

or tent, or any boat or vessel, or railroad car[,]’” even though the defendant didn’t present 

any caselaw to show that Missouri actually prosecutes those who burgle these structures. 

495 U.S. at 602 (quoting Mo. Rev. Stat. § 560.070 (1969)). This was also true in Mathis, 

where the Supreme Court explained that Iowa’s burglary statute was facially broader than 

generic burglary because it “reaches a broader range of places: ‘any building, structure, [or] 

land, water, or air vehicle.’” 136 S. Ct. at 2250 (quoting Iowa Code § 702.12 (2013)). In light

of the Supreme Court’s analyses in Taylor and Mathis, our court nonetheless decided in 

Castillo-Rivera that, even if the text seems facially broader than the conduct covered by the 

generic definition, defendants must present some case to show a “realistic probability” that 

states criminalize a broader range of conduct. We therefore cannot say that Esquivel-

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B 

When Espinoza-Bazaldua was charged with his underlying marijuana 

offense in 2005, Indiana’s “dealing in marijuana” statute provided: 

A person who: 

(1) knowingly or intentionally: 

 (A) manufactures; 

 (B) finances the manufacture of; 

 (C) delivers; or 

 (D) finances the delivery of; 

marijuana, hash oil, or hashish, pure or adulterated; or 

(2) possesses, with intent to: 

 (A) manufacture; 

 (B) finance the manufacture of; 

 (C) deliver; or 

 (D) finance the delivery of; 

marijuana, hash oil, or hashish, pure or adulterated; 

commits dealing in marijuana, hash oil, or hashish[.] 

Ind. Code § 35-48-4-10 (2005).4

With “alternatively phrased” statues such as Indiana’s, Mathis instructs 

that our “first task” is to decide divisibility, “determin[ing] whether [the 

statute’s] listed items are [divisible] elements [defining multiple potential 

crimes] or [alternative factual] means [of committing a single element of an 

indivisible crime].” 136 S. Ct. at 2256; accord Hinkle, 832 F.3d at 575 & n.36. 

“If they are elements, [we] review the record materials to discover which of the 

enumerated alternatives played a part in the defendant’s prior conviction, and 

then compare that [offense to] the generic crime.” Mathis, 136 S. Ct. at 2256. 

 

Quintana unequivocally overruled this court’s decision in Castillo-Rivera. See Tech. 

Automation Servs. Corp. v. Liberty Surplus Ins. Corp., 673 F.3d 399, 405 (5th Cir. 2012) 

(“[F]or a Supreme Court decision to change our Circuit’s law, it ‘must be more than merely 

illuminating with respect to the case before [the court]’ and must ‘unequivocally’ overrule 

prior precedent.” (quoting Martin v. Medtronic, Inc., 254 F.3d 573, 577 (5th Cir. 2001)).

4 The current version of Indiana Code § 35-48-4-10 is substantially similar to the 2005 

provision, but Indiana now criminalizes dealing in salvia, as well as marijuana, hash oil, and 

hashish.

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“But if instead they are means . . . [we] may ask only whether the elements of 

the state crime and generic offense make the requisite match.” Id. Because 

we ultimately decide, however, that Espinoza-Bazaldua has not shown that 

Indiana’s dealing-in-marijuana statue, as a whole, is broader than the 

Guidelines’ generic definition of “drug trafficking offense,” we will not address 

the divisibility issue.5

As explained above, our court requires a defendant arguing that a state 

statute is broader than the generic definition to point to a case in which the 

state applied the statute “in the special (nongeneric) manner for which he 

argues.” Castillo-Rivera, 853 F.3d at 222 (quoting Duenas-Alvarez, 549 U.S. 

at 193). The 2015 Guidelines generically defined “drug trafficking offense” as 

any offense “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, import, export, distribute, 

or dispense.” U.S.S.G. § 2L1.2 cmt. n.1(B)(iv) (2015). Here, Espinoza-Bazaldua 

argues that because Indiana Code § 35-48-4-10 (2005) criminalizes financing 

the manufacture or delivery of marijuana, it is broader than the generic 

definition6 because, in Espinoza-Bazaldua’s view, Indiana outlaws “purchasing 

 

5 The Government failed to offer any argument about divisibility, stating in a single 

sentence of its brief: “the Texas burglary statute is not divisible.”

6 In Lopez v. Lynch, 810 F.3d 484 (7th Cir. 2016), the Seventh Circuit addressed

Indiana’s “dealing-in-cocaine” statute, § 35-48-4-1, which is textually identical to the dealingin-marijuana statute at issue here. Comparing § 35-48-4-1 to the federal Controlled 

Substances Act, which prohibits “manufactur[ing], distribut[ing], or dispens[ing], or 

possess[ing] with intent to manufacture, distribute, or dispense, a controlled substance,” 21 

U.S.C. § 841(a)(1), the Seventh Circuit held that Indiana’s dealing-in-cocaine statute was 

facially broader, and thus nongeneric, because Indiana “also criminalizes financing the 

manufacture or delivery of illegal drugs.” 810 F.3d at 489. Lopez is unhelpful to us, however, 

for two reasons. First, the Seventh Circuit compared one of Indiana’s dealing offenses to the 

Controlled Substances Act, while we must compare Indiana’s dealing-in-marijuana offense 

to the 2015 Guidelines’ definition of “drug trafficking offense.” The Guidelines’ definition 

includes not only the conduct prohibited by the Controlled Substances Act (manufacturing, 

distributing, dispensing, or possessing with intent to do those things), but also importing, 

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drugs through an intermediary for personal use.” See generally RodriguezNegrete, 772 F.3d at 226 (“The purchase of a drug alone . . . does not fall within 

the plain language of a ‘drug trafficking offense’ under U.S.S.G. § 2L1.2.”). For 

his read of the statute to comprehend personal-use purchases, EspinozaBazaldua primarily cites Kibler v. State, No. 49A02-0807-CR-589, 904 N.E.2d 

730 (Ind. Ct. App. 2009 (unpublished), but also relies on Hyche v. State, 934 

N.E.2d 1176 (Ind. Ct. App. 2010), and Vausha v. State, 873 N.E.2d 207 (Ind. 

Ct. App. 2007) (unpublished), for support.7

None of the cases on which Espinoza-Bazaldua relies establishes the 

personal-use interpretation of the statute that he argues. In Kibler, the 

Indiana Court of Appeals considered a double-jeopardy challenge to the 

defendant’s convictions for “conspiracy to commit dealing in a narcotic drug” 

and “dealing in a narcotic drug,” a statute worded identically to Indiana’s 

dealing-in-marijuana offense. See § 35-48-4-1; 904 N.E.2d at *2. The State 

charged the defendant with “knowingly financ[ing] the delivery of . . . heroin” 

because he arranged with a dealer for an intermediary (his friend) to buy ten 

balloons of heroin. Id. But even if this analysis were enough to establish that 

directly purchasing drugs for personal use violates Indiana’s dealing statute, 

subsequent decisions have effectively overruled that holding. See United 

 

exporting, or offering to sell (plus possessing with intent to import, export, or offer to sell). 

U.S.S.G. § 2L1.2 cmt. n.1(B)(iv). Second, the Seventh Circuit decided whether Indiana’s 

statute was broader than the comparable generic offense based only on the text of the statute, 

which is in tension with our decision in Castillo-Rivera. Again, Castillo-Rivera demands that 

a defendant show us a case in which the state applied its statute more broadly than the 

generic definition, and Lopez does not satisfy this requirement.

7 Contrary to the Government’s suggestion, our court cannot refuse to consider 

unpublished state cases in conducting the categorical inquiry. As we have explained, “an 

unpublished state decision [still] demonstrates that a state has in fact applied a statute in a 

manner broader than the generic definition of the Guidelines offense.” United States v. 

Martinez, 595 F. App’x 330, 334-35 (5th Cir. 2014) (unpublished) (collecting cases in which 

our court has looked to unpublished state decisions). “In determining the actual application 

of a statute, a conviction is a conviction, regardless of the manner in which it is reported.” 

Id. at 335 (quoting Nicanor-Romero v. Mukasey, 523 F.3d 992, 1005 (9th Cir. 2008)).

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States v. Bernel-Aveja, 844 F.3d 206, 210 (5th Cir. 2016) (applying postconviction authoritative decision to determine breadth of state criminal offense 

in categorical analysis). 

Indeed, the same court of appeals held in Hyche that “mere[] . . . 

purchase[s]” are not enough to sustain a dealing conviction in Indiana. 

934 N.E.2d at 1177 (emphasis omitted). In Hyche, the defendant arranged to 

buy three ecstasy pills for thirty dollars, but at the meeting place, either the 

defendant or his associate shot the dealer and killed the dealer’s associate. Id. 

The defendant was convicted of felony murder, which required the jury to find 

him guilty on the underlying felony of drug dealing. Id. at 1178. The defendant 

challenged the sufficiency of the evidence on appeal, and the State argued that 

“by agreeing to pay $30.00 for” ecstasy, the defendant “financed the delivery of 

the drugs.” Id. at 1179. In holding that the facts were insufficient to support 

the defendant’s conviction, the Indiana Court of Appeals explained: 

Hyche was charged with dealing in ecstasy, not investing funds to 

further the offense of possession of it. He was not charged with 

possession with intent to deliver, and the record is devoid of 

evidence of any other persons to whom he intended to deliver the 

drugs. . . . Instead, he acted merely as a purchaser and not as a 

creditor or an investor. . . . Because the record is devoid of any 

evidence that Hyche was acting in any capacity other than that of 

purchaser, it is insufficient to support a dealing conviction and 

therefore a felony murder conviction based thereon. 

Id. at 1179-80.

Similarly, in Vausha, the defendant challenged her conviction for 

financing the delivery of methamphetamine. 873 N.E.2d at *1. The facts 

revealed that the defendant and her husband repeatedly solicited their 

neighbor, a confidential informant for the State, to buy meth. Id. at *1-2. The 

court highlighted two particular facts that supported the defendant’s 

conviction for dealing by financing the delivery of meth. First, when the 

informant—purporting to buy meth on behalf of downstream dealers—asked 

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to pay a lower price, the defendant “took control of the situation,” insisting on 

a certain price and telling the confidential informant that his buyers must be 

unaccustomed to such high-quality meth. Id. at *2, 5. Second, the defendant 

emphasized to the informant the “significant costs and risks” she took on to 

manufacture the meth. Id. at *5. She specifically explained that she had to 

spend all day buying hundreds of over-the-counter pills to make enough meth 

to sell to the informant. Id. at *2, 5. Like the court in Kibler, the court in 

Vausha never held that Indiana’s dealing statute encompasses purchases for 

personal use, as Espinoza-Bazaldua argues it does. 

Because Espinoza-Bazaldua has not pointed us to a case establishing 

that Indiana applies its dealing-in-marijuana statute “in the special 

(nongeneric) manner for which he argues,” he has not shown a “realistic 

probability” that the statute criminalizes a broader range of conduct than the 

2015 Guidelines’ generic definition.8 See Castillo-Rivera, 853 F.3d at 222. We 

do not hold that Indiana’s statute, as a matter of law, categorically matches

the 2015 Guidelines’ definition of “drug trafficking offense”; we simply hold 

that Espinoza-Bazaldua has not shown that it does not. We therefore AFFIRM 

the judgment of the district court. 

 

8 We do not decide—but nonetheless doubt—the Government’s alternative argument 

that any conduct covered by a substantive state statute that could constitute aiding and 

abetting deserves an enhancement even though the comparable generic substantive offense 

does not cover the same conduct. The plain language of the Guidelines’ commentary instructs 

courts to determine first whether the substantive offenses align. If they do, then aiding and 

abetting, conspiring to commit, or attempting to commit the state’s substantive offense, 

which matches the generic offense, warrants the sentencing enhancement. See U.S.S.G. § 

2L1.2 cmt. n.5 (2015); United States v. Henao-Melo, 591 F.3d 798, 804 (5th Cir. 2009) (“[A] § 

843(b) violation [facilitating a drug offense] is, therefore, a drug trafficking offense [under § 

2L1.2(b)(1)(A)(i)] only if the underlying offense was a drug trafficking offense.” (emphasis 

added)); United States v. Cornelio-Pena, 435 F.3d 1279, 1284 (10th Cir. 2006) (“[B]ased on 

the Commission’s articulation, offenses similar to aiding and abetting, conspiring, and 

attempting to commit offenses that otherwise meet the definition of ‘crime of violence’ are 

included in § 2L1.2(b)(1)(A)(ii).” (emphasis added)).

 Case: 16-41069 Document: 00514196775 Page: 14 Date Filed: 10/16/2017