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

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No. 13-40924

months based upon Martinez’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 States following removal. He pleaded guilty to the 

indictment without the benefit of a written plea agreement. In the Presentence 

Report (“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 those 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 guidelines sentence range was 63–78 

months of imprisonment and that his guidelines sentence range would be 57–

71 months of imprisonment if he were granted an additional one-level 

reduction for 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 

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that Martinez-Lugo had been convicted under GA. CODE ANN. § 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. Based 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 release. 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 to 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 

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offense under . . . § 2L1.2(b)(1)(A)(i).”1 He is, however, the first to have 

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 GA. CODE ANN. § 16-13-30(j)(1) (2002) does not constitute a “drug 

trafficking offense” for purposes of applying the sentence enhancement of 

§ 2L1.2(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. CortesTolentino, 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 Moncrieffe, 133 S. Ct. at 1693.

6 As the Supreme Court recognized in Moncrieffe when analyzing the same Georgia statute, 

“we know that Georgia prosecutes this offense when a defendant possesses only a small 

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Application Note to § 2L1.2(b)(1)(A)(i) defines 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” means 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 counterfeit 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).

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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

The proper standard of comparison in this categorical inquiry is the 

elements of the enumerated offense of “possession with intent to distribute,” 

9 GA. CODE ANN. § 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. Sanchez-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 Taylor, 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. 

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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 with 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

Martinez-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 controls 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 assault 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, contemporary meaning of “drug trafficking offense” because the 

section 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 otherwise). 

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the everyday understand of trafficking.”17 Before responding more fully to this 

argument, we note that on the required categorical comparison 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 intent 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 intent 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 “possession 

with intent to distribute.” See supra note 13 and accompanying text. The Moncrieffe court

looked only to the federal Controlled Substances Act’s definition for comparison because 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 categorical inquiry than just a comparison 

with the federal statute. Notably, neither the dissent nor Martinez-Lugo, cite any other 

sources—such as treaties, a consensus of state laws, or the Model Penal Code—that indicate 

the generic meaning of possession with intent to distribute 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 are 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. 

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“aggravated felony” 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 

possession with intent to do so, does not fit easily into the everyday 

understanding of ‘trafficking,’ which ordinarily means some 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 did 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 no 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’ only 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)).

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

as “possession with the intent to distribute.” The Guidelines took a different 

approach than the INA does in trying to assess the seriousness 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 imposed exceeded 13 

months, a 12-point enhancement for a prior felony that is a “drug trafficking 

offense” for which the sentence 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 state 

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 that 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” enhancement 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 enhancement; 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”). 

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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 

categories of crimes—including receipt of stolen property, failure to appear, 

and gambling and prostitution offenses27—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 course, with the Guidelines now being advisory,

sentencing courts have discretion to account for mitigating factors, including 

the actual conduct involved in prior offenses, in determining a sentence that is 

“sufficient, but not greater than necessary,” to reflect 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 

plain language of § 2L1.2(b)(1)(A)(i) and its Application Note, a “drug 

trafficking offense” includes the offense of “possession 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 generic possession with 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 Manual as a whole as well as the authorizing statute.”).

29 18 U.S.C. § 3553(a).

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We therefore AFFIRM the sentence.

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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 MartinezLugo’s prior 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 possession 

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 and 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. 

§ 2L1.2(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 marijuana.” 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 district courts 

increase a defendant’s offense level by sixteen if “the defendant previously was 

deported, or unlawfully remained in the United States, after . . . a conviction 

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

exceeded 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 controlled 

substance . . . with intent to manufacture, import, export, distribute, or 

dispense.” U.S.S.G. § 2L1.2(b)(1)(A)(i), Application Note § 1(B)(iv).

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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 defines “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 distribution 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, 273 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.”). 

In Moncrieffe, the Court analyzed whether possession with intent to 

distribute under Ga. Code Ann. § 16-13-30(j)(1) constitutes an “aggravated 

felony” under 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 offense 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 misdemeanor 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. 

Examining 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 of 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. Ambiguity on this point 

means that the conviction did not ‘necessarily’ involve facts that correspond to 

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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 sort 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 ramifications 

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 

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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 conviction is serious 

enough to invoke the sixteen-level enhancement under § 2L1.2(b)(1)(A)(i), the 

highest enhancement available under this provision.

Under 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 

Moncrieffe. 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 prior 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 defined 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 

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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 

under 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, upholding a sixteen-level offense enhancement 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 committed 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 penalizes conduct that may amount to no more than social 

sharing of a small amount of marijuana for no remuneration—a crime 

punishable as a misdemeanor under federal law, and thus not “serious” 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 

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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 majority’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 Moncrieffe. 

The 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 

substance. The majority correctly acknowledges that the mere “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.” 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 

drug 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, 

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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-Shepard2 categorical approach, “we look ‘not to the 

facts of the particular prior case,’ but instead to whether ‘the state statute 

defining the crime of conviction’ categorically 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 . . . and 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 under 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 

guidelines 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).

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at 1684. We use a “plain-meaning approach when determining the ‘generic, 

contemporary 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 

only if a conviction of the state offense ‘necessarily’ involved . . . facts equating 

to [the] 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, 742 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.” Shepard 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). United States v. Moreno-Florean, 542 F.3d 445, 449 (5th Cir. 

2008) (internal quotation marks and citations omitted). If the modified categorical approach 

does narrow the statute to a specific subsection, 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 

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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 consistent with the elements of a CSA offense. See 

Maj. Op., at 8. Certainly, the Court in Moncrieffe found that “[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 the 

Court has explained, “the 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.” HenaoMelo, 591 F.3d at 805. It is undisputed 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 

comparison 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 conduct 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 

should 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. 

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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 which 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 committed 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-Tercero, 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. Code Ann. § 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 Ga. Code Ann. § 16-13-30(j)(1)—penalizes the 

possession 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, 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).”). Thus, Moncrieffe dictates the 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. 

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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 “plainmeaning 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 engage 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 majority’s position to the contrary, the Court has repeatedly 

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 

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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 

commonsense 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))) (internal 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 

commonsense, 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 the 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 statute 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 

nothing 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 inconsistent with the 

clear purpose of that provision. I therefore respectfully dissent.

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