### IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 13

- 40924

UNITED STATES OF AMERICA , Plaintiff

- Appellee,
v. JUAN FRANCISCO MARTINEZ

- LUGO , Defendant

- Appellant.

Appeal from the United States District Court for the Southern District of Texas

Before DAVIS, DENNIS, and COSTA, Circuit Judges. PER CURIAM: We sua sponte withdraw the prior panel opinion, United States v. Martinez

- Lugo , 773 F.3d 678 (5th Cir. 2014), and substitute the following: Defendant

- Appellant Juan Francisco Martinez

- Lugo appeals from the district court’s application of a 16

- level sentence enhancement pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(i) for his having been removed following a conviction for a drug trafficking offense for which the sentence was greater than 13 United States Court of Appeals Fifth Circuit 

### FILED March 27, 2015 Lyle W. Cayce Clerk Case: 13-40924 Document: 00512984402 Page: 1 Date Filed: 03/27/2015No. 13

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months based upon Mart inez’s 2002 Georgia conviction for possession with intent to distribute marijuana . For the reasons set out below, we AFFIRM the sentence

. FACTS AND PROCEEDINGS Martinez

- Lugo was charged in an indictment with being unlawfully present in the United Stat es following removal. He pleaded guilty to the indictment without the benef it of a written plea agreement. In the Presentence R eport ( “ PSR ” ), the Probation Office determined that Martinez

- Lugo ’s base offense level was eight. It applied a 16

- level enhancement pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(i) for having been removed following a conviction for a drug trafficking offense for which the sentence was greater than 13 months . The recommendation was based on Martinez

- Lugo ’s 2002 Georgia conviction for possession with intent to distribute marijuana , for which Martinez

- Lugo was sentenced to five years of imprisonment with two of th ose years probated. Applying a two

- level reduction for acceptance of responsibility, the Probation Office determined that Martinez

- Lugo ’ s total offense level was 22. Based upon Martinez

- Lugo ’s total offense level of 22 and criminal history category of IV, it calculated that his g uidelines sentence range was 63

– 78 months of imprisonment and that his guidel ines sentence range would be 57

– 71 months of imprisonment if he were granted an additional one

- level reduction fo r acceptance of responsibility. As an attachment to the PSR, the Probation Office included the accusation, guilty plea documentation, and final judgment from Martinez

- Lugo ’s 2002 conviction, and those documents showed

2 Case: 13-40924 Document: 00512984402 Page: 2 Date Filed: 03/27/2015No. 13

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that Martinez

- Lugo had been convicted under G A

. C ODE A NN . § 16

- 13

- 30(j)(1) (2002)

. When the case was first called for sentencing, Martinez

- Lugo raised an objection to the 16

- level enhancement on the ground that his prior Georgia conviction did not qualify as a “ drug trafficking offense ” under the Supreme Court’s reasoning in Moncrieffe v. Holder , 133 S. Ct. 1678 (2013) , which considered the same Georgia statute . The district court granted Martinez

- Lugo a continuance, and he subsequently filed a written objection to the PSR on that basis. The district court overruled Martinez

- Lugo ’s objection. The Government moved for the additional one

- level reduction for acceptance of responsibility, and the district court granted the motion. The district court additionally ruled that Martinez

- Lugo ’s criminal history category was “artificially exaggerated” and that a criminal history category of III was more accurate. Bas ed upon a total offense level of 21 and criminal history category of III, it determined that Martinez

- Lugo ’s guidelines sentence range was 46

– 57 months of imprisonment. It sentenced Martinez

- Lugo to 46 months of imprisonment without a term of supervised re lease. Martinez

- Lugo filed a timely notice of appeal on the basis that the district court misapplied the 16

- level sentence enhancement for a “drug trafficking offense” under § 2L1.2(b)(1)(A)(i). STANDARD OF REVIEW Martinez

- Lugo is not the first appellant t o argue that, following Moncrieffe , a conviction “for giving away or offering to give away [ i.e ., for no remuneration] a controlled substance” does not constitute “a drug trafficking 3 Case: 13-40924 Document: 00512984402 Page: 3 Date Filed: 03/27/2015No. 13

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offense under .

. . § 2L1.2(b)(1)(A)(i).” 1 He is, however, the first to h ave preserved the error by raising the objection at the district court, so we are not limited to plain error review, which must deny relief where, as here, “the issue is subject to reasonable debate and the error is not readily apparent.” 2 Because Martinez

- Lugo preserved his objection to the sentence enhancement, “[w]e review the district court ’ s interpretation and application of the sentencing guidelines de novo and its findings of fact for clear error.” 3 “We review a district court’s conclusion that a prior state conviction constitutes a drug trafficking offense de novo .” 4 DISCUSSION On appeal, Martinez

- Lugo renews his argument that his prior conviction under G A

. C ODE A NN

. § 16

- 13

- 30(j)(1) (2002) does not constitute a “drug trafficking offense” for purposes of applying the sentence enhan cement of § 2L 1.2(b)(1)(A)(i) . Martinez

- Lugo points to the Supreme Court’s emphasis in Moncrieffe that “trafficking” generally requires remuneration, 5 and he argues that the Georgia statute is overbroad because it also criminalizes possession with intent to distribute for no remuneration

. 6 On the other hand, the

1 United States v. Perez

- Melgarejo , 552 F. App’ x 327 , 328 (5th Cir. 2014) ; see also United States v. Gomez

- Martinez , 566 F. App’ x 308 (5th Cir. 2014) , and United States v. Cortes

Tolentino , 577 F. App ’ x 388 (5th Cir. 2014)

. 2 Perez

- Melgarejo , 552 F. App ’ x at 328. 3 United States v. Baker , 742 F.3d 618, 620 (5th Cir. 2014) (citing United States v. Cisneros

– Gutierrez , 517 F.3d 751, 764 (5th Cir. 2008) )

. 4 United States v. Lopez

- Salas , 513 F.3d 174, 178 (5th Cir. 2008) (citing United States v. Gutierrez

- Ramirez , 405 F.3d 352, 355

- 56 (5th Cir. 2005) )

. 5 See Moncrieff e , 133 S. Ct. at 1693. 6 A s the Supreme Court recognized in Moncrieffe when analyzing the same Georgia statute,

“ w e know that Georgia prosecutes this offense when a defendant possesses only a small 4 Case: 13-40924 Document: 00512984402 Page: 4 Date Filed: 03/27/2015No. 13

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Application Note to § 2L1.2(b)(1)(A)(i) define s as a “drug trafficking offense” precisely the type of conviction at issue here. Section 2L1.2(b)(1)(A)(i) provides: (b) Specific Offense Characteristic (1) Apply the Greatest: If the defendant previously was deported, or unlawfully remained in the United States, after

— (A) a conviction for a felony that is (i) a drug trafficking offense for which the sentence imposed exceeded 13 months;

. . . increase by 16 levels if the conviction receives criminal history points under Chapter Four

. . . . 7 Application Note to § 2L1.2(b)(1)(A)(i) provides : “Drug trafficking offense” m eans 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 a counterfeit substance) or the possession of a controlled substance (or a counte rfeit substance) with intent to manufacture, import, export, distribute , or dispense. 8 The Georgia statute under which Martinez

- Lugo was convicted provides: (j) (1) It is unlawful for any person to possess, have under his control, manufacture, deliver, distribute,

amount of marijuana

. . . and that ‘ distribution ’ does not require remuneration, see , e.g ., Hadden v. State , 181 Ga. App. 628, 628

– 629, 353 S.E.2d 532, 533

– 534 (1987) .” Id. at 1686

. 7 U.S.S.G. § 2L1.2(b)(1)(A)(i). 8 U.S.S.G. § 2L1.2(b)(1)(A)(i), Application Note § 1(B)(iv) (emphasis added). 5 Case: 13-40924 Document: 00512984402 Page: 5 Date Filed: 03/27/2015No. 13

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dispense, administer, purchase, sell, or possess with intent to distribute marijuana

. 9 The fact that Martinez

- Lugo’s Georgia conviction has the same label

— “possession with intent to distribute”

— as an enumerated offense listed in the Guidelines definition of “drug trafficking offense ” does not automatically warrant application of the enhancement. 10 Instead, we assume that an enumerated offense refers to the “generic, contemporary meaning” of that offense. 11 The familiar categorical approach then requires us to ensure that the elements of that generic enumerated offense are congruent with the elements of the defendant’s prior offense

. 12 In determining the generic, contemporary meaning of an enumerated offense, we consult sources such as state and federal statutes, the Model Penal Code, respected treatises , and dictionaries. 13 T he proper standard of comparison in this categorical inquiry is the elements of the enumerated offense of “possession with intent to distribut e ,”

9 G A

. C ODE A N N

. § 16

- 13

- 30(j)(1) (2002) (emphasis added). The parties concede that the charging document in the Georgia case narrowed Martinez

- Lugo’s conviction to the “possession with intent to deliver” offense of this divisible statute. 10 See United States v. Sanche z - Sanchez , --- F.3d

--- , 2015 WL 791395 , at *1 n.9 (5th Cir. Feb. 24, 2015) (“State

- law labels do not control this inquiry[.]” (quoting United States v. Ramirez , 557 F.3d 200, 205 (5th Cir. 2009) ) ; United States v. Ellis

- Garcia , 357 F. App’x 569, 570 (5th Cir. 2009) (explaining that “ even if a prior offense is designated as ‘robbery’ in a state penal code, it may not qualify as a robbery ” as that term is used in the Guidelines). 11 United States v. Dominguez

- Ochoa , 386 F.3d 639, 643 (5th Cir. 2004) (quoting Taylor v. United States , 495 U.S. 575, 598 (1990))

. 12 See United States v. Rodriguez , 711 F.3d 541, 557

– 58 (5th Cir. 2013) (en banc) (clarifying the categorical inquiry as it applies to non

- common law offenses enumerated in the Guidelines). 13 Ta ylor , 495 U.S. at 590; United States v. Reyes

- Mendoza , 665 F.3d 165, 166

– 67 (5th Cir. 2011) ; Dominguez

- Ochoa , 386 F.3d at at 644

– 46

. 6 Case: 13-40924 Document: 00512984402 Page: 6 Date Filed: 03/27/2015No. 13

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not the general meaning of the Guidelines term “drug trafficking.” 14 That is because the Guidelines definition reflects a determination that certain enumerated offenses

— such as possession wit h intent to distribute

— qualify for the “ drug trafficking offense” enhancement so long as the offenses are consistent with the generic, contemporary meaning of the enumerated offense that the Commission was contemplating when it adopted the definition. 15 M artinez

- Lugo never argues that the elements of Georgia ’s possession with intent to distribute offense differ from the elements of the generic, contemporary “possession with intent to distribute” offense. 16 Instead, he argues that Moncrieffe v. Holder contr ols because of its general statement , in the context of discussing the “aggravated felony” provision of the Immigration and Nationality Act (INA) , that “[s ]haring a small amount of marijuana for no remuneration, let alone possession with intent to do so, does not fit easily into

14 See, e.g. , Reyes

- Mendoza , 665 F.3d at 167 (focusing on whether the state court “manufacturing” offense fit within the generic, contemporary meaning of “manufacturing” offense that was enumerated in definition of “drug trafficking” offense); see also Rodriguez , 711 F.3d at 557

– 58 ( comparing state “sexual a ssault of a child” offense with generic offense of “sexual abuse of a minor” that is enumerated offense for “crime of violence” enhancement ”); United States v. Moreno

- Florean , 542 F.3d 445, 456 (5th Cir. 2008) ( considering whether California “kidnapping” statute is broader than enumerated “kidnapping” offense listed in definition of “crime of violence” )

. 15 See United States v. Gonzales , 484 F.3d 712, 716 (5th Cir. 2007) ( noting that courts should not look to the generic , contempora ry meaning of “drug trafficking offense” because the
s ection 2L1.2 commentary defines that term by listing enumerated offenses )

. 16 Cf. United States v. Rodriguez

- Negrete , 772 F.3d 221, 228 (5th Cir. 2014) (finding that sentencing sheet stating that defendant pleaded guilty to “PWID/Dist. Of Cocaine/LSD/other Narcotic drugs in Sch. 1(b) & (c)/Sched. II, 1st offense” satisfied “drug trafficking offense” enhancement under plain language of Sentencing Guidelines and noting defendant did not argue otherwi se). 7 Case: 13-40924 Document: 00512984402 Page: 7 Date Filed: 03/27/2015No. 13

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the everyday understand of trafficking .” 17 Before respondi ng more fully to this argument , we note that on the required categorical comparis on between the elements of Georgia’s possession with intent to distribute and those of the generic offense, Moncrieffe seems to support the district court’s application of the enhancement. In comparing the Georgia offense with the federal possession with i ntent to distribute statute, 18 Moncrieffe recognized that the elements are the same. 19 Thus, Georgia’s statute “necessarily proscribe[s] conduct that is an offense under the [Controlled Substances Act].” 20 If it recognized that Georgia’s possession with inte nt to distribute statute has the same elements as its federal counterpart, why did Moncrieffe nonetheless find that a conviction under the Georgia statute did not require mandatory deportation? The answer lies in Moncrieffe ’s focus on the

17 Moncrieffe , 133 S. Ct. at 1693 (some internal quotation marks and ellipsis omitted) (partially quoting Carachuri

- Rosendo v. Holder , 560 U.S. 563, 566 (2010) )

. 18 The federal statute is only one source of the generic, contemporary meaning of “posse ssion with intent to distribute.” See supra note 1 3 and accompanying text

. The Moncrieffe court looked only to the federal Controlled Substances Act’s definition for comparison b ecause the Court was considering whether Moncrieffe’s prior conviction was an “aggravated felony” under the INA , which defines drug trafficking crimes with reference to the Controlled Substances Act. This is another reason why Moncrieffe is not controlling on the Guidelines question which requires a broader survey for the categori cal inquiry than just a comparison with the federal statute. Notably, neither the dissent nor Martinez

- Lugo, cite any other
source s

— such as treaties, a c onsensus of state laws, or the Model Penal C ode

— that indicate the generic meaning of possession with in tent to distri bu t e differs from the Georgia offense. 19 Because Georgia’s statute “makes it a crime to ‘.

. . possess with intent to distribute marijuana, ’ ” and there is “no question that it is a federal crime to ‘possess with intent to

. . . distribute

. . . a controlled substance,’ 21 U.S.C. § 841(a)(1), one of which is marijuana, § 812(c) ,” “the state and federal provisions correspond.” Moncrieffe , 133 S. Ct. at 1685. And when the government argued that the “‘ elements ’ of Moncrieffe’ s Georgia offense a re the same as those of the CSA offense: (1) possession (2) of marijuana (a controlled substance), ( 3) with intent to distribute it,” the Court did not disagree with that premise

. Id. 20 Id. at 1685. 8 Case: 13-40924 Document: 00512984402 Page: 8 Date Filed: 03/27/2015No. 13

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“aggravated felon y” provision of the INA. That statute looks to whether the state offense would constitute a felony under the federal drug laws. 21 The Court held that the Georgia conviction did not fulfill that felony requirement because “distributing a small amount of marihuana for no remuneration” is a misdemeanor under federal law. 22 Further demonstrating this limited context in Moncrieffe , the two cases it cites in the passage upon which Martinez

- Lugo relies are ones interpreting the “aggravated felony” provision of the INA

. 23 We nonetheless recognize the difficulty of this issue and the attraction of Martinez

- Lugo’s argument in light of the Supreme Court’s statement that “[s]haring a small amount of marijuana for no remuneration, let alone
po ssession with intent to do so, does not fit easily into the everyday understanding of ‘trafficking,’ which ordinarily means so me sort of commercial dealing .” 24 We conclude, however, that Moncrieffe does not control this case given that its holding rested on the specific requirement of the INA’s aggravated felony provision requiring that the state offense would constitute a felony under the federal drug laws. In defining the Guidelines enhancement at issue here, the Sentencing Commission di d not impose that requirement.

21 Id. at 1686, 1683 (citing 8 U.S.C. § 1101(a)(43)(B) , which incorporates the definition of drug trafficking crime defined in 18 U.S.C. § 924(c)). 22 Id. at 1688; see supra note 6. 23 See Carachuri

- Rosendo , 560 U.S. at 570 (“[F]or a state conviction to qualify as an ‘aggravated felony’ under the INA, it is necessary for the underlying conduct to be punishable as a federal felony.”); Lopez v. Gonzales , 549 U.S. 47, 60 (2006) (holding that because there “is n o reason to think Congress meant to allow the States to supplant its own classifications when it specifically constructed its immigration law to turn on them[,]

. . . a state offense constitutes a ‘felony punishable under the Controlled Substances Act’ onl y if it proscribes conduct punishable as a felony under that federal law”). 24 Moncrieffe , 133 S. Ct. at 1693 (some internal quotation marks and ellipsis omitted) (partially quoting Carachuri

- Rosendo v. Holder , 560 U.S. 563, 566 (2010) )

. 9 Case: 13-40924 Document: 00512984402 Page: 9 Date Filed: 03/27/2015No. 13

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Instead it required that the state offense match an enumerated offense such

as “ possession with the intent to distribute .” T he Guidelines took a different approach than the INA does in trying to assess the serio usness of the state offense. Section 2L1.2 applies a 16

- point enhancement for a prior felony that is a “drug trafficking offense” for which the sentence i mposed exceeded 13 months , a 12

- point enhancement for a prior felony that is a “drug trafficking offen se ” for which the sentenc e imposed was 13 months or less, an 8

- point enhancement for an aggravated felony regardless of the sentence imposed , and a 4

- point enhancement for any other felony. 25 The focus is thus both on the length of the sentence and whether the conviction was a felony under stat e law. As the dissent notes, the Guidelines commentary defines the 8

- point “aggravated felony” enhancement to incorporate the INA’s definition of aggravated felony at issue in Moncrieffe . The dissent then contends tha t it is anomalous to impose the greater 16

- point enhancement for a Georgia conviction when it would not qualify for the lesser 8

- point enhancement under Moncrieffe . This analysis misses a few points. First, inclusion of a separate “aggravated felony” enha ncement in Section 2L1.2 arguably supports our view that the INA

- focused Moncrieffe analysis does not control the distinct “drug trafficking” enhancement. 26 Second, the existence of a drug trafficking offense is not enough to result in the 16

- point enhancem ent ; the offense must have

25 U.S.S.G. § 2L1.2 (b)(1)(A)

– (D). 26 See Sosa v. Alvarez

- Machain , 542 U.S. 692, 711 n.9 (2004) (explaining that when a drafter “uses certain language in one part of [a legal provision] and different language in another, the court assumes different meanings were intended”). 10 Case: 13-40924 Document: 00512984402 Page: 10 Date Filed: 03/27/2015No. 13

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been serious enough to have actually resulted in a sentence of greater than 13 months. Third, the INA’s aggravated felony provision sweeps in twenty

ca t egories of crimes

— including receipt of stolen property , failure to appear, and gambling and prostitution offenses 27

— that the Sentencing Commission may have wanted to treat as less serious than drug trafficking offenses. Whether that determination is the best policy decision or not, it is one to which we owe deference

. 28 And of cour se, with t he Guidelines now being advisory, sentencing courts have discretion to account for mit i g at ing factors, including the actual conduct involved in prior offenses, in determining a sentence that is “sufficient, but not greater than necessary,” to ref lect the statutory sentencing factors. 29 CONCLUSION For these reasons, we decline to extend Moncrieffe to the different scheme embodied in the Guidelines absent clear direction to do so. Under the pla i n language of § 2L1.2(b)(1)(A)(i) and its Application Note , a “ drug trafficking offense ” includes the offense of “ possess ion with intent to distribute.” Under a straightforward application of the categorical approach, the Georgia offense under which Martinez

- Lugo was convicted has the same elements as the ge neric possession wi th intent to distribute offense.

27 8 U.S.C. § 1101(a)(43)(G), (J), (K), (Q), (T). 28 See Stinson v. United States , 508 U.S. 36, 45 (1993) (“The Commission, after all, drafts the guidelines as well as the commentary interpreting them, so we can presume that the interpretations of the guidelines contained in the commentary represent the most accurate indications of how the Commission deems that the Guidelines should be applied to be consistent with the Guidelines Manu al as a whole as well as the authorizing statute.”). 29 18 U.S.C. § 3553(a). 11 Case: 13-40924 Document: 00512984402 Page: 11 Date Filed: 03/27/2015No. 13

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We therefore AFFIRM the sentence

.

12 Case: 13-40924 Document: 00512984402 Page: 12 Date Filed: 03/27/2015No. 13

- 40924 JAMES L. DENNIS, Circuit Judge, dissenting:
In Moncrieffe v. Holder , 133 S. Ct. 1678 (2013), the Supreme Court held that a conviction under a Georgia criminal statute that criminalizes the gratuitous sharing of a small amount of marijuana, or possession with the intent to do so, does not categorically constitute “illicit trafficking in a controlled substance” and thus is not an “aggravated felony” for purposes of disqualifying a non

- citizen for discretionary relief under the Immigration and Nationality Act (INA). The sole issue on appeal here is whether Martinez

Lugo’s pr ior conviction under the same Georgia statute constitutes a “drug trafficking offense” justifying the imposition of a sixteen

- level offense enhancement

— the highest possible sentencing enhancement under United States Sentencing Guidelines (U.S.S.G.) § 2L1.2 (b). Applying the principles and reasoning of Moncrieffe , I conclude that it does not. Although the INA and U.S.S.G. § 2L1.2(b) are not directly coextensive, their application involves substantially similar principles and concepts that must be carefully applied to avoid sentencing outcomes that are inconsistent with the plain text and purpose of U.S.S.G. § 2L1.2 . Further, our circuit precedent in U.S.S.G. cases requires that we apply the same categorical approach that the Court used in Moncrieffe ; thus we ought to carefully heed, rather than disregard, the teachings of the Moncrieffe Court in that respect. Moncrieffe makes clear that “ a drug trafficking offense ” does not include the sharing of a small amount of marijuana for no remuneration, or possessio n thereof with intent to do so. Consequently, a proper and full application of the categorical approach here demonstrates that, similar to the situation in Moncrieffe , the Georgia crime of conviction does not constitute a drug

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trafficking offense. Accordingly, Martinez

- Lugo’s prior Georgia conviction does not constitute a federal “drug trafficking offense” and, therefore, may not be used to enhance his sentence under U.S.S.G. § 2L1.2. I therefore respectfully dissent from the majority’s decision an d opinion to the contrary. I. A. Martinez

- Lugo pleaded guilty to being unlawfully present in the United States following removal , in violation of 8 U. S.C. § 1326(a)

. The district court determined that his base offense level was eight pursuant to U.S.S.G. § 2L 1.2(a) and, after overruling Martinez

- Lugo’s objection, found that he was subject to a sixteen

- level offense enhancement under § 2L1.2(b)(1)(A)(i) based on his prior Georgia conviction for a crime designated as “ possession with intent to distribute marijua na. ” With the sixteen

- level enhancement, the district court calculated Martinez

- Lugo’s Guideline advisory range as 46

- 57 months of imprisonment and sentenced him to 46 months in prison. Section 2L1.2(b)(1)(A)(i) instructs, in relevant part, that distric t courts increase a defendant’s offense level by sixteen if “ the defendant previously was deported, or unlawfully remain ed in the United States, after . . . a conv iction for a felony that is . . . a drug trafficking offense for which the sentence imposed

e xceeded 13 months .” USSG § 2L1.2(b)(1)(A)(i ). The “Application Note” to §2L1.2 defines a “drug trafficking offense” as, inter alia , “an offense under federal, state, or local law that prohibits the

. . . possession of a co ntrolled substance

. . . with in tent to manufacture, import, export, distribute , or dispense. ” U.S.S.G. § 2L1.2(b)(1)(A)(i), Application Note § 1(B)(iv).

14 Case: 13-40924 Document: 00512984402 Page: 14 Date Filed: 03/27/2015No. 13

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In 2002, Martinez

- Lugo pleaded guilty to a Georgia felony offense under Ga. Code Ann. § 16

- 13

- 30(j)(1), which provides that: It is unlawful for any person to possess, have under his control, manufacture, deliver, distribute, dispense, administer, purchase, sell, or possess with intent to distribute marijuana. The charging documents presented to the district court established that Martinez

- Lugo pleaded guilty to possession with intent to distribute marijuana, and was sentenced to serve three years in confinement and two years on probation . The Georgia code defi nes “distribute” as follows: “to deliver a controlled substance, other than by administering or dispensing it.” Ga. Code Ann. § 16

- 13

- 21(11). As the Supreme Court held in Moncrieffe , Georgia case law reveals that this is a broad definition and that distr ibution does not necessarily require a sale. See Dorsey v. State , 212 Ga. App. 479, 480, 441 S.E.2d 891, 892 ( 1994 ) (“[A] distribution may or may not be a sale.”); see also Capers v. State , 27 3 Ga. App. 427, 428, 615 S.E.2d 126, 128 (2005) (“[T]he offense of distribution of [a controlled substance] does not require that the offender receive a payment.”)

. I n Moncrieffe , the Court analyzed whether possession with intent to distribute under Ga. Code Ann. § 16

- 13

- 30(j)(1) constitutes an “aggravated felony” u nder the Immigration and Nationality Act (INA). 133 S. Ct. at 1682

- 83. The relevant INA provision, 8 U.S.C. § 1101(a)(43), defines an aggravated felony as, inter alia , a conviction for “illicit trafficking in a controlled substance,” as defined in 18 U.S .C. § 924(c)(2). Id. at 1683. Section 924(c)(2), in turn, defines “drug trafficking crime” as, inter alia , crimes that qualify as felonies punishable under the federal Controlled Substances Act (CSA). Id. A

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felony under the CSA is, generally, any offen se listed therein that is punishable by imprisonment for more than one year. Id. It may be a felony under the CSA to possess with the intent to distribute a controlled substance (including marijuana ); however, this offense is punishable only as a misdeme anor under the CSA if it involves only the distribution of “a small amount of marihuana for no remuneration.” Id. ; see 21 U.S.C. §§ 841(b), 844. In other words, if the crime involves only a small amount of marijuana, without an exchange of money or other consideration, then the offense is treated as simple drug possession and characterized as a misdemeanor offense under the CSA. Id. at 1686. Exa mining the manner in which Georgia courts have prosecuted individuals under Ga. Code Ann. § 16

- 13

- 30(j)(1), the Moncrieffe Court concluded that because a defendant under this Georgia statute may be prosecuted for giving away a small amount of marijuana for no remuneration, it is not categorically an aggravated felony. The Court explained that the fact of a conviction for possession with intent to distribute marijuana, standing alone, does not reveal whether either remuneration or more than a small amount o f marijuana was involved. It is possible neither was; we know that Georgia prosecutes this offense when a defendant possesses only a small amount of marijuana, see, e.g., Taylor v. State , 260 Ga. App. 890, 581 S.E.2d 386, 388 (2003) (6.6 grams), and that “distribution” does not require remuneration, see, e.g., Hadden v. State , 181 Ga. App. 628, 628

– 629, 353 S.E.2d 532, 533

– 534 (1987). Id. at 1686. Accordingly, “Moncrieffe’s conviction could correspond to either the CSA felony or the CSA misdemeanor. Ambi guity on this point means that the conviction did not ‘necessarily’ involve facts that correspond to

16 Case: 13-40924 Document: 00512984402 Page: 16 Date Filed: 03/27/2015No. 13

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an offense punishable as a felony,” and thus, “under the categorical approach, then, Moncrieffe was not convicted of an aggravated felony.” Id. at 1686

- 87

. In conclusion, the Court then warned that courts should be wary of the Government’s attempts to classify a low

- level drug offense as “illicit trafficking in a controlled substance” and thus an “aggravated felony,” reasoning that to classify “[s]haring a small amount of marijuana for no remuneration, let alone possession with intent to do so,” as a trafficking offense “defies ‘the commonsense conception’ of th[at] term[]” because “the everyday understanding of ‘trafficking’

. . . ordinarily means some sor t of commercial dealing.” Id . at 1693 (some internal quotation marks and ellipses omitted). Thus, under the categorical approach and the teachings of Moncrieffe , it would be error to conclude that Martinez

- Lugo’s conviction under Ga. Code Ann. § 16

- 13

- 30 (j)(1), which criminalizes conduct such as the social sharing or giving away of small amounts of marijuana for no remuneration, is necessarily and categorically a drug trafficking offense. B. There is an ironic and illogical inconsistency in the ramification s produced by the majority’s decision today. Under U.S.S.G. § 2L1.2 (b) , defendants convicted of illegal reentry into the United States are exposed to greater sentences if they reentered the country after having been convicted of prior crimes. The section operates on a graduated scale: the more serious the prior conviction, the greater the increased sentencing exposure. After the majority’s decision, that structure comes crumbling down . For the reasons that will be explained below, Moncrieffe dictates that Martinez

- Lugo’s prior Georgia conviction is not serious enough to qualify for the relatively minor eight

- level 17 Case: 13-40924 Document: 00512984402 Page: 17 Date Filed: 03/27/2015No. 13

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enhancement under U.S.S.G. § 2L1.2(b)(1)(C). And yet, according to the majority of this panel, Martinez

- Lugo’s prior Georgia conv iction is serious enough to invoke the sixteen

- level enhancement under § 2L1.2(b)(1)(A)(i), the highest enhancement available under this provision

. U nder U.S.S.G. § 2L1.2(b)(1)(C), a defendant previously deported after conviction of an “aggravated felony” receives an eight

- level offense enhancement

. The Sentencing Commission defines an aggravated felony for purposes of § 2L1.2(b)(1)(C) as the “meaning given that term in 8 U.S.C. § 1101(a)(43) ”

— the INA provision that the Supreme Court analyzed in Moncrieff e. See U.S.S.G. § 2L1.2, Application Note (3)(A) (emphasis added); Moncrieffe , 133 S. Ct. at 1683 ( analyzing 8 U.S.C. § 1101(a)(43) to determine whether Moncrieffe was previously convicted of an “aggravated felony” under the INA). Thus, Martinez

- Lugo’s p rior conviction under the identical Georgia statute cannot trigger an eight

- level offense enhancement under U.S.S.G. § 2L1.2(b)(1)(C) for a prior aggravated felony conviction

— Moncrieffe held that this Georgia statute is not an “aggravated felony” as define d in 8 U.S.C. § 1101(a)(43)

. It defies logic , then, to conclude that although Martinez

- Lugo’s prior Georgia conviction could not amount categorically to an aggravated felony

— and thus cannot trigger an eight

- level enhancement under U.S.S.G. § 2L1.2

— that his prior conviction , possibly for sharing a small amount of marijuana gratuitously, nonetheless categorically constitutes a “drug trafficking offense” worthy of a sixteen

- level offense enhancement under U.S.S.G. § 2L1.2. The majority attempts to justify the anomaly of imposing such a harsh sentencing enhancement on individuals convicted under a statute that 18 Case: 13-40924 Document: 00512984402 Page: 18 Date Filed: 03/27/2015No. 13

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penalizes gratuitous sharing of small amounts of marijuana by noting that the ultimate legal question presented in this case

— whether an enhancement

u nder U.S.S.G. was properly imposed

— is different from the question at issue in Moncrieffe

— whether the immigration courts properly found that the petitioner was previously convicted of an “aggravated felony” under the INA, and that the Sentencing Commission is free to treat convictions of “drug trafficking offenses” more harshly than “aggravated felony” convictions, regardless of whether “that determination is the best policy decision or not.” Maj. Op., at 11. However, u pholding a sixteen

- level offense enha ncement for a prior conviction under a statute that the Supreme Court has explained may be violated by mere social sharing of small amounts of marijuana for no remuneration flouts the very purpose of this U.S.S.G. provision. As this court has explained, “ [t]he purpose of the sixteen

- level enhancement is to ensure that a defendant who reenters the United States illegally after having committed a serious crime is punished more severely than a defendant who reenters the country illegally without having commit ted a serious crime.” United States v. Bustillos

- Pena , 612 F.3d 863, 867 (5th Cir. 2010) (emphasis added). The Court in Moncrieffe makes it clear that Martinez

- Lugo’s prior Georgia conviction penal izes conduct that may amount to no more than social shar ing of a small amount of marijuana for no remuneration

— a crime punishable as a misdemeanor under federal law, and thu s not “seri ous” enough to warrant even an eight

- level offense enhancement as an aggravated felony. The majority nonetheless condones the sixteen

- level enhancement here, which is imposed upon defendants who have been deported after being convicted of very serious crimes, including, inter alia , human trafficking offenses and 19 Case: 13-40924 Document: 00512984402 Page: 19 Date Filed: 03/27/2015No. 13

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national security or terrorism offenses, see U.S.S.G. § 2L1.2 (b)(1 )(A), and is double that which is imposed upon defendants with prior “aggravated felony” convictions. See U.S.S.G. § 2L1.2 (b)(1)(A)

- (C). By requiring sentencing courts to treat non

- commercial social users of marijuana like serious drug traffickers, the m ajority’s decision creates an untenable inconsistency that is irreconcilable with Moncrieffe. II. The majority might have avoided its error had it properly and fully applied the categorical approach required by circuit precedents and elaborated upon in Monc rieffe

. T he Application Notes corresponding to U.S.S.G. § 2L1.2 provide a list of enumerated offenses that qualify as “drug trafficking” offenses for purposes of § 2L1

. 2(b)(1)(A), including the possession with intent to distribute a controlled substanc e. The majority correctly acknowledges that the mere “ fact that Martinez

- Lugo’s Georgia conviction h as the same label

— ‘ possession with intent to distribute ’

— as an enumerated offense listed i n the Guidelines definition of ‘drug trafficking offense’ does no t automatically warrant application of the enhancement .” Maj. Op., at 6. Our precedents plainly instruct that rather than allowing state

- law labels to control, “[w]e employ a categorical approach to determine whether a prior conviction qualifies as a dru g trafficking offense under § 2L1.2.” United States v. Henao

- Melo , 591 F.3d 798, 802 (5th Cir. 2009); see also United States v. Teran

- Salas , 767 F.3d 453,

20 Case: 13-40924 Document: 00512984402 Page: 20 Date Filed: 03/27/2015No. 13

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458 (5th Cir. 2014) ; United States v. Reyes

- Mendoza , 665 F.3d 165, 168 (5th Cir. 2011); United States v. Garza

- Lopez , 410 F.3d 268, 273 (5th Cir. 2005)

. 1 A. Under the Taylor

- Shepard 2 c ategorical approach, “we look ‘not to the facts of the particular prior case,’ but instead to whether ‘the state statute defining the crime of conviction’ categoricall y fits within the ‘generic’ federal definition of a corresponding [drug trafficking offense].” Moncrieffe , 133 S. Ct. at 1684 (quoting Gonzales v. Duenas

- Alvarez , 549 U.S. 183, 186 (2007)). To determine the “generic” federal definition of a crime we must view the federal offense “in the abstract, to see whether the state statute shares the nature of the federal offense that serves as a point of comparison.” Moncrieffe , 133 S. Ct.

1 Our sister circuits likewise apply the categorical approach to determine whether a prior state law conviction constitutes a federal offense for purpose of sentencing enhancement under the Guidelines. See, e.g. , United States v. Torre

- Jimenez , 771 F.3d 1163, 1165 (9th Cir. 2014) (“We apply the categorical and modified categorical approaches described in Taylor , . . . to determine whether a defendant's prior conviction satisfies U. S.S.G. § 2L1.2(b)(1)(A).”); United States v. Peterson , 629 F.3d 432, 435 (4th Cir. 2011) (“Courts employ a categorical approach in determining whether a prior conviction will lead to a sentence enhancement under the Sentencing Guidelines.”); United States v. Palomino Garcia , 606 F.3d 1317, 1328 (11th Cir. 2010) (“Although Taylor and Shepard were ACCA cases, we have employed their ‘categorical approach’ in determining whether a prior offense qualifies for an enhancement under the Guidelines.”); United States v. Torres

- Romero , 537 F.3d 1155, 1158 (10th Cir. 2008) (“When a defendant contests whether his prior conviction constitutes a drug trafficking offense the sentencing court is generally required to follow the categorical approach adopted in Taylor . . . an d Shepard ”); United States v. Montanez , 442 F.3d 485, 492 (6th Cir. 2006) (applying the categorical approach and reasoning that “[h]ow a state titles its statutory provisions, however, is not determinative of what actual statute a defendant was convicted u nder for federal sentencing purposes.”); United States v. Fernandez

- Antonia , 278 F.3d 150, 161

- 62 (2d Cir. 2002) (“A sentencing court employs a ‘ categorical approach’ in determining whether a conviction under state law fits within the federal sentencing gu idelines and thus merits an offense level enhancement.”).

2 See Taylor v. United States , 495 U.S. 575, 598

- 99 (1990) ; Shepard v. United States , 544 U.S. 13, 24

- 26 (2005) (plurality opinion). 21 Case: 13-40924 Document: 00512984402 Page: 21 Date Filed: 03/27/2015No. 13

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at 1684

. We use a “ plain

- meaning approach when determining the ‘ generic,

c ontemporary meaning ’ of non

- common - law offense categories enumerated in federal sentencing enhancements .” United States v. Rodriguez , 711 F.3d 541, 552 (5th Cir. 2013) (en banc). “[A] state offense is a categorical match with a generic federal offense onl y if a conviction of the state offense ‘necessarily’ involved

. . . facts equating to [t he] generic [federal offense].” Moncrieffe , 133 S. Ct. at 1684 (citing Shepard v. United States , 544 U.S. 13, 24 (2005) (plurality opinion)). “ Because we examine what the state conviction necessarily involved, not the facts underlying the case, we must presume that the conviction ‘rested upon [nothing] more than the least of th[e] acts’ criminalized, and then determine whether even those acts are encompassed by the generic federal offense.” Id. (quoting Johnson v. United States , 559 U.S. 133, 137 (2010)); see also United States v. Carrasco

- Tercero , 745 F.3d 192, 198 (5th Cir. 2014) (quoting Moncrieffe , 133 S. Ct. at 1685); Sarmientos v. Holder , 7 42 F.3d 624, 628 (5th Cir. 2014). 3 As we have previously explained on review of a district court’s

3 If the pertinent state statute at issue has disjunctive elements, a court applies a modified categorical approach to ascertain which of the disjunctive elements formed the basis of the conviction. United States v. Miranda

- Ortegon , 670 F.3d 661, 663 (5th Cir. 2012). In making this determination, a court may consider limited sources, such as the “charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented.” She pard v. United States , 544 U.S. 13, 16 (2005). If the statute cannot be narrowed, a court considers “whether the least culpable act constituting a violation of that statute constitutes” a drug trafficking offense for purposes of § 2L1.2(b)(1)(A)(i). Unit ed States v. Moreno

- Florean , 542 F.3d 445, 449 (5th Cir. 2008) (internal quotation marks and citations omitted). If the modified categorical approach does narro w the statute to a specific sub section, then the court engages in an inquiry as if applying the basic categorical approach: it compares the elements of the narrowed statute to the “generic crime” to determine whether it qualifies for enhancement, looking to the 22 Case: 13-40924 Document: 00512984402 Page: 22 Date Filed: 03/27/2015No. 13

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sentencing enhancement pursuant to § 2L1.2(b)(1) , the essential inquiry involved requires us to determine “ whether the least

- culpable act that would violate [the state criminal statute] would also qualify as ‘ drug trafficking’ for purposes of § 2L1.2. ” Reyes

- Mendoza , 665 F.3d at 167

. “ If [the state law criminal statute] is broad enough to criminalize conduct that would not constitute trafficking under § 2L1 .2, then the sentence should not have been enhanced. ” Id. Accordingly , I cannot agree with the majority’s contention that Moncrieffe supports the district court’s sentencing enhancement here merely because the Court in Moncrieffe , at first, found that the Georgia state law’s elements, without benefit of the state courts’ interpretation of them, superficially appear to be consisten t with the elements of a CSA offense. See Maj. Op., at 8. Certainly, the Court in Moncrieffe found tha t “[t]here is no question that it is a federal crime to ‘possess with intent to

. . . distribute

. . . a controlled substance,’ 21 U.S.C. § 841(a)(1), one of which is marijuana, § 812(c).” Moncrieffe , 133 S. Ct. at 1685. However, that finding did not end the Moncrieffe Court’s inquiry, nor may it end ours. Id. (“So far, the state and federal provisions correspond. But this is not enough[.]”). The Moncrieffe Court concluded only that the Georgia law corresponds to a crime penalized by the CSA and says nothing to suggest that this finding alone signifies that the Georgia crime is categorically a “drug trafficking” offense. As we have

elements of the crime, not the underlying facts. See Descamps , 133 S. Ct. at 2283. As th e Court has explained, “t he modified approach merely helps implement the categorical approach when a defendant was convicted of violating a divisible statute. ” Id. at 2285 (citations omitted)

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explained, “[n]ot all felony drug offenses are drug trafficking offenses.” Henao

Melo , 591 F.3d at 805 . It is undispute d that the CSA also penalizes simple possession of a controlled substance, see 21 U.S.C. § 844(a), which is excluded from the Guideline’s definition of a “drug trafficking offense.” See U.S.S.G. § 2L1.2; see also Henao

- Melo , 591 F.3d at 805 (citing United States v. Caicedo

– Cuero , 312 F.3d 697, 707 (5th Cir.2002) (“[The definition of ‘drug trafficking offense’ in § 2L1.2] clearly excludes simple possession of a controlled substance.”)). Indeed, ending the inquiry prematurely , after only a superficial
compa rison of the offenses’ elements alone, ignores both this court’s and the Supreme Court’s instructions that we must analyze Georgia state law to determine how the state courts interpret their own statute and whether the state

- law offense criminalizes c onduc t broader than the generic federal offense. See Moncrieffe , 133 S. Ct. at 1684 ; see also Reyes

- Mendoza , 665 F.3d at 169 (analyzing California courts’ interpretation of the term “manufacture” to determine whether the defendant’s prior California conviction for manufacturing a controlled substance in violation of Section 11379.6 of the California Health and Safety Code is categorically a drug trafficking offense under U.S.S.G. § 2L1.2). B. Applying the Taylor

- Shepard categorical approach to this case, we shoul d conclude that the Georgia statute under which Martinez

- Lugo was convicted criminalizes conduct that does not categorically amount to “drug trafficking” and that his sentence, improperly enhanced under U.S.S.G. § 2L1.2 (b) by sixteen offense levels for conviction of a prior drug trafficking offense , should therefore be vacated. 24 Case: 13-40924 Document: 00512984402 Page: 24 Date Filed: 03/27/2015No. 13

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Preliminarily, because the Georgia statute at issue is a divisible one, the district court properly consulted the charging documents and the final judgment to determine whic h subsection of the Georgia statute Martinez

- Lugo was convicted under, and concluded he was convicted of possession with intent to distribute marijuana. From there, we apply the categorical approach and determine whether, “assum[ing] the defendant committ ed the least culpable act to satisfy the conviction,” the elements of the Georgia conviction for possession with intent to distribute marijuana are necessarily encompassed within the definition of a “drug trafficking offense” under § 2L1.2. See Carrasco

- T ercero , 745 F.3d at 198 (quoting Moncrieffe , 133 S. Ct. at 1685). In other words, we must compare the “ least

- culpable act ” that would constitute possession with intent to distribute under Ga . C ode A nn . § 16

- 13

- 30(j)(1) and determine whether such conduct “ would also qualify as ‘drug trafficking’ for purposes of § 2L1.2.” Reyes

- Mendoza , 665 F.3d at 167. Moncrieffe makes clear that Martinez

- Lugo’s prior conviction

— possession with intent to distribute under G a . C ode Ann . § 16

- 13

- 30(j)(1)

— penalizes the
poss ession of small amounts of marijuana with the intent to distribute or give
away marijuana for no remuneration. See Moncrieffe , 133 S. Ct. 1686 (“[ W]e know that Georgia prosecutes this offense when a defendant possesses only a small amount of marijuana, se e, e.g., Taylor v. State , 260 Ga.App. 890, 581 S.E.2d 386, 388 (2003) (6.6 grams), and that ‘distribution’ does not require remuneration, see, e.g., Hadden v. State , 181 Ga.App. 628, 628

– 629, 353 S.E.2d 532, 533

– 534 (1987)

. ”). Thus, Moncrieffe dictates th e first step of our categorical analysis here because the Court found that defendants in Georgia may be convicted of possession with intent to distribute marijuana under Ga. 25 Case: 13-40924 Document: 00512984402 Page: 25 Date Filed: 03/27/2015No. 13

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Code Ann. § 16

- 13

- 30(j)(1) for the giving away or social sharing of marijuana for no remuneration

— the “least culpable act” punishable under this provision. Id. Next, we must determine whether “ even th [e] se acts are encompassed by the generic federal offense.” Moncrieffe , 133 S. Ct. at 1684 (quoting Johnson , 559 U.S. at 137 ). In defining the generic federal offense, we use a “ plain

meaning approach .” See Rodriguez , 711 F.3d at 552. Moncrieffe instructs that the plain

- meaning or “everyday understanding of ‘trafficking,’ . . . means some sort of commercial dealing.” Moncrieffe , 133 S. Ct. at 1693. It follows that the plain meaning of the generic federal drug trafficking offense of possession with intent to distribute a controlled substance involves possession with the intent to distribute for remuneration or with the intent to e ngage in some form of commercial dealing. Martinez

- Lugo’s conviction under Ga. Code Ann. § 16

- 13

- 30(j)(1), which criminalizes conduct that does not necessarily amount to the distribution of marijuana for remuneration, is therefore broader than the generic , contemporary meaning of a drug trafficking offense of possession with intent to distribute and therefore cannot support the sixteen

- level sentence enhancement under § 2L1.2(b)(1)(A)(i). Despite the majo rity’s position to the contrary, the Court has rep eatedly advised that we must consider the “everyday understanding” of the term “trafficking” when determining whether a state law is a categorical match with an enumerated “trafficking” offense, and that we should be wary of the Government’s arguments that low

- level drug offenses, such as sharing small amounts of marijuana for no remuneration, are “aggravated felonies” or “trafficking” offenses. See Moncrieffe , 133 S. Ct. at 1693 (reasoning that the 26 Case: 13-40924 Document: 00512984402 Page: 26 Date Filed: 03/27/2015No. 13

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Government’s attempt to classify low

- level drug offenses as “illicit trafficking” offenses and thus “aggravated felonies” is an approach that “defies the

common sense conception of these terms ”) (quoting Carachuri

- Rosendo v. Holder , 560 U.S. 563, 574 (2010) (quoting Lopez v. Gonzales , 549 U.S. 47, 56, (2006))) (i nternal quotation marks omitted). Rather than ignore the term “trafficking” when we analyze whether the Georgia statute here is a drug trafficking offense, “[t]he everyday understanding of ‘trafficking’ should count for a lot here

. . . [a]nd ordinarily ‘trafficking’ means some sort of commercial dealing.” Lopez , 549 U.S. at 43; see also Carachuri

- Rosendo , 560 U.S. at 573. To decline to consider the meaning of the term “trafficking” in determining the

comm onsense, generic meaning of the drug trafficking offense of possession with intent to distribute marijuana would ignore the “the cardinal rule that statutory language must be read in context.” Lopez , 549 U.S. at 56 ; see also Jones v. United States , 527 U.S. 373, 389 (1999) (“Statutory language must be read in context and a phrase ‘gathers meaning from the words around it.’”) (internal citation omitted). Here, the majority stops short of reading the relevant Guideline provision as a whole and thus fails to acknowledge the ordinary, everyday meaning of t he drug trafficking offense of possession with intent to distribute as requiring some sort of commercial dealing, which is conveyed by inclusion of the term “trafficking.” As the Court has explained, “our interpretive regime reads whole sections of a stat ute together to fix on the meaning of any one of them[.]” Id. The majority has not provided a satisfactory reason that these same considerations and principles of statutory construction do not apply to a U.S.S.G. case, like this case, where we are tasked with

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determining whether a prior state

- law offense is categorically a “drug trafficking” offense. * * * In sum, applying the categorical approach, as we must , I would conclude that Martinez

- Lugo’s prior Georgia conviction, which may have involved nothin g more than sharing a small amount of marijuana with no intention to seek remuneration , was not a drug trafficking offense, and therefore did not warrant the sixteen

- level offense enhancement under U.S.S.G. § 2L1.2(b), which ultimately led to his sentence of 46 months of imprisonment . In finding to the contrary, the majority fails to fully and properly apply the categorical approach, misreads and disregards the principles and holdings of Moncrieffe , and condones an application of U.S.S.G. § 2L1 .2 that is i nconsistent with the clear purpose of that provision

. I therefore respectfully dissent.

28 Case: 13-40924 Document: 00512984402 Page: 28 Date Filed: 03/27/2015