### IN THE UNI TED STATES COURT OFAPPEALS FOR THE FIF TH CIRCUIT

No. 10-11119

UNITED STATES OF AMERICA, Plaintiff-Appellee,

versus HUGO REYES-MENDOZA, Defendant-Appellant.

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

Before SMITH, BARKSDALE, and BENAVIDES, Circuit Judges. JERRY E. SMITH, Circuit Judge:

Hugo Reyes-Mendoza pleaded guilty of illegal reentry after removal from the United States in violation of 8 U.S.C. § 1326(a) and (b)(2). He had a conviction of manufacturing a controlle d s ub s t a n ce in violation of section 11379.6 of the California Health and Safety Code. Because the district court classified that conviction as a “drug trafficking offense,” the sentence was enhanced by sixteen lev e l s u nder U.S.S.G. § 2L1.2. Reyes-Mendoza unsuccessfully objected to the U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

### F I L E D Decem ber 1 5, 2 011 Lyle W . Cayce Clerk Case: 10-11119 Document: 00511696472 Page: 1 Date Filed: 12/15/2011No. 10-11119

classification and was sentenced at the top of the 70-87-month sentencing range. He contests the classification of the prior conviction. This court reviews a challenge to a preserved application and interpretation of the sentencing guidelines de novo . United States v. Sandoval-Ruiz , 543 F.3d 733, 735 (5th Cir

. 2 0 0 8)

. In determining whether a conviction meets the definition of a drug-trafficking offense for purposes o f § 2L1.2(b)(1)(A)(i), we apply a strict “categorical approach,” looking only to the statutory definition of the prior offense and not to the particular facts underlying the conviction. Id .; Taylor v. United States , 495 U

. S

. 575, 600 (1990). Where the record does not

m ake clear the offender’s offense and conviction, courts must ensure th a t th e least culpable act that violates the statute constitutes a drug-trafficking offense. See United States v. Gonzalez-Ramirez , 4 7 7 F .3d 310, 315-16 (5th Cir. 2007). Accordingly, our inquiry centers on wh e ther the least-culpable act that would violate s e c t i o n 11379.6 would also qualify as “drug trafficking” for purposes of § 2L1.2. If section 11379.6 is broad enough to criminalize conduct that would not constitute trafficking under § 2L1.2, then the sentenc e s h o uld not have been enhanced. S ectio n 1 1 3 7 9

. 6 p uni she s any p erson “who manufactures, compounds, converts, produces, derives, processes, or prepares, either directly or indirectly by chemical extraction or independently by means of chemical synthesis, any controlled substance

. . . .” The definition of “drug trafficking offense” for purposes of § 2L1.2 includes an “offense under

. . . state

. . . law that prohibits the manufacture

. . . of a controlled substance.” On its face, section 11379.6 meets the definition o f “ drug trafficking offense”; the word “manufacture,” however, has been interpreted quite broadly for purposes of that section. Because we do not read “manufacture” that broadly for purposes of the sentencing guidelines, there are some acts that would violate section 11379.6 without qualifying as a “drug trafficking offenses” for purposes of § 2L1.2. We therefore vacate the sentence

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and remand for resentencing without the enhancement.

I. The parties essentially agree on the scope of section 11379.6: that it criminalizes the synthesis, processing, or preparation of a chemical that the defendant knew would be used to make a controlled substance, even if he had no intention of making a controlled substance. The requirements of the statute are most plainly laid out in the Judicial Council of Cal if o rnia Criminal Jury Instructions: Th e People do not need to prove that the defendant complete d th e process of manufact u ring or producing a controlled substance. Rather, the People must prove that the defendant knowingly participated in the beginning or intermediate steps to process or make a controlled substance. Thus, the defendant is guilty of this crime if the People have proved that:
1. The defendant engaged in the synthesis, processing, or preparation of a chemical that is not itself a controlled substance; AND
2. The defendant knew that the chemical was going to be used in the manufacture of a controlled substance.

Judicial Council of California Criminal Jury Instructions § 2330, Manufacturing

a Controlled Substance (H E AL T H & SA F
. C O D E , § 11379.6(a), (b)) (LexisNexis Fall 2 0 0 8 e d

. )

. Section 11379.6 requires knowledge that a controlled substance woul d be produced, and that requirement applies where the defendant was producing only a precursor to a controlled substance. People v. Coria , 21 Cal. 4th 868 (Cal. 1999). Therefore, section 11379.6 would apply to the extraction of a precursor to metha m p h et a mine f

ro m p ill s , p rovi de d the defendant knew the resulting precursor would eventually be used for the production of methamphetamine. He would not have to intend specifically to produce methamphetamine or even intend that
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i t ever be produced. For example, he would be guilty under this statute if he

e xtr a cted a precursor and sold it to someone he knew would use it to produc e methamphetamine.

II. The breadth of the term “manufacture” is not as well defined for purposes of § 2L1.2. No caselaw has been brought to our attention that directly discusses whether making a precursor with knowledge that it will be used to manufacture a controlled substance falls within § 2L1.2’s definition of “manufacture.” Both

a plain reading of the phrase “manufacture a controlled substance” and caselaw
p oint, however, to the exclusion of manufacturing a precursor from § 2 L 1

. 2 ’ s definition of “manufacture.” A plain reading of the phrase “manufacture a controlled substance” seems to exclude production of a precursor without an intent eventually to produce the finished product. A manufacturer of rubber would not normally be considered

a manufacturer of tires, even if he knows a tire company will buy his rubber. It would also strain language to say that someone who makes rubber with the knowledge that it will eventually be used in tires is “attempting to make tires.” We take comfort that this plain reading is also the most harmonious with the reported cases. In United States v. Arizaga-Acosta , 436 F.3d 506, 508 ( 5th Cir. 2006), we held that possession of a precursor with intent to manufacture a controlled substance was not a “drug trafficking offense” for purposes of 2L1.2. We also held that possession of a precursor with intent to manufacture was not substantially equival e nt to attempted manufacture of a controlled substance. Id

. Because the possession of a precursor necessarily happens after its production, it would be in tension with prior caselaw to construe the manufacture of a precursor as an attempted manufacture of the controlled s ub s t a n c e. With such a h o l di ng, the event that is closer to the eventual danger (the possession of th e
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precursor) would not constitute an attempt, but the more distant event would. This result is also in line with United States v. Forester , 8 3 6 F

. 2 d 8 5 6, 859-61 (5th Cir. 198 8), in which we held that the defendant could not be sentenced for both production of a precursor with intent to manufacture a controlled

s ub s t a nce and the attempted manufacture of a controlled substance. We concluded that these were separate crimes, and separate convictions were possible. Only one sentenc e w a s a p propriate, however, because the production of the precursor included no additional elements that were n o t i ncluded in the attempted production of a controlled substance. Id

. If Congress in t ended the production of a precursor always to constitute attempted production o f a controlled substance, then the statute criminalizing the production of the precursor would be superfluous; it would criminalize no new conduct. Therefore, the canon against surplusage counsels against construing “manufacture” so broadly as to make the production of a precursor always sufficient to qualify as an attempt.

III. The California statute applies to production of a precursor with knowledge that it will be used to produce a controlled substance. That statute would criminalize the production of a precursor for sale to a third party who uses it to manufacture a controlled substance. If the federal guideline is construed according to the plain meaning of “manufacture a controlled substance,” it would not criminalize such conduct. Therefore , th e l e a st culpable act that violates § 11379.6 would not fall under the definition of “manufacture” for purposes of § 2L1.2. The government argues that the production of a precursor with the intent to sell it to a third party would still constitute aiding and abetting the manufacture of a controlled substance, even if “manufacture” were construed to include only the production of the finished product. Aiding and abe t t i ng, however, requires the offense to be completed. See United States v. McCoy , 539 F.2d 1050,
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1064 (5th Cir. 1976). Therefore, the California statute would s t il l be broader than the federal guideline, because the statute does not include an element that the controlled substance actually be produced. The government also maintains that even if “manufacture” requires production of the final product, any production of a precursor would be an attempt. That is not always true, because the mens rea of attempt is higher than the mens
rea of the California statute. Attempt requires intent to commit the underlying offense, United States v. Polk , 118 F.3d 286, 291 (5th Cir. 1997), but the California statute requires only knowledge that the precursor will be used to produce the controlled substance. See Coria , 21 Cal. 4th at 881.

IV. A procedural e rror during sentencing is harmless if “the error did not affect the district court’s selection of the sentence imposed.” Williams v. United States , 503 U.S. 193, 203 (1992). The burden of establishing that an error is har m l e s s r e s t s on the party seeking to uphold the sentence. United States v. Delgado-Martinez , 564 F.3d 750 (5th Cir. 2009). The government has not even attempted to argue that the error was harmless. Reyes-Mendoza’s sentence was at the maximum end of the guideline range with the enhancemen t , a n d it exceeds the upper bound of the range when it is properly calculated. There is no evidence that the district court would have sentenced above the proper sentencing range. H aving determined that the guideline calculation was in error and th a t the e rr o r was not harmless, we VACATE the sentence and REMAND for resentencing.

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