IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 13-40529

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

RAUL NUNEZ–SEGURA,

Defendant - Appellant.

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 7:12-CR-1793-1

Before SMITH, ELROD, and SOUTHWICK, Circuit Judges.

PER CURIAM:*

Raul Nunez–Segura pleaded guilty to illegal reentry following

deportation in violation of 8 U.S.C. § 1326(a) and was sentenced to fifty-seven 

months of imprisonment. Nunez–Segura appeals his sentence, arguing that 

the district court incorrectly applied a sixteen-level “drug trafficking offense” 

sentence enhancement based on his prior criminal conviction in California.

Because we agree that Nunez–Segura’s conviction was not a drug trafficking 

offense under the Guidelines, we VACATE and REMAND for resentencing.

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 5TH 

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

May 6, 2014

Lyle W. Cayce

Clerk

 

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I.

On October 30, 2012, a grand jury returned an indictment charging

Nunez–Segura with illegal reentry following deportation in violation of 

8 U.S.C. § 1326(a). Nunez–Segura pleaded guilty to the indictment without 

the benefit of a plea agreement. The district court accepted Nunez–Segura’s 

guilty plea and ordered the preparation of a pre-sentence investigation report 

(“PSR”).

In completing the PSR, the probation officer determined that Nunez–

Segura had a base offense level of eight. The probation officer also 

recommended a sixteen-level sentence enhancement pursuant 

§ 2L1.2(b)(1)(A)(i) of the United States Sentencing Guidelines (“U.S.S.G.” or 

“Guidelines”) on the ground that Nunez–Segura’s prior 2006 and 2007 

California convictions constituted “drug trafficking offenses.” Nunez–

Segura’s 2007 conviction, which is the focus of this appeal, was for the 

violation of section 11379(a) of the California Health and Safety Code (West

2007), a statute prohibiting drug-related activities. The PSR recommended

that section 11379(a) could be violated in a number of ways, including by 

“giving away” a controlled substance, which would not constitute a drug 

trafficking offense. Even so, the probation officer determined that the 2007 

conviction still constituted a drug trafficking offense because Nunez–Segura 

admitted in his waiver and guilty plea to the conviction that he “was willfully 

& unlawfully in possession of methamphetamine for transportation & w/the 

specific intent to sell,” which according to the probation officer fell within the 

scope of the Guidelines’ definition of a drug trafficking offense.

According to the PSR, the application of the sixteen-level enhancement, 

combined with a three-level reduction for acceptance of responsibility, gave 

Nunez–Segura a total offense level of twenty-one. The PSR also gave Nunez–

Segura eight criminal history points, resulting in a criminal history category 

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of IV. Due to his total offense level and criminal history category, Nunez–

Segura was subject to an imprisonment range of fifty-seven to seventy-one 

months. 

At sentencing, Nunez–Segura objected to the sixteen-level sentence 

enhancement. He argued, as he does now on appeal, that his 2007 California 

conviction was not a drug trafficking offense. Although the district court did 

not accept the PSR in full,1 it agreed with the PSR that Nunez–Segura’s 2007 

conviction was a drug trafficking offense and accordingly sentenced him to 

fifty-seven months of imprisonment. Nunez–Segura filed a timely notice of 

appeal.

II.

“[W]e review a sentencing decision for reasonableness regardless of 

whether the sentence imposed is inside or outside the Guidelines range.” 

United States v. Rodriguez, 711 F.3d 541, 547 (5th Cir. 2013) (en banc). To do 

so, we “first ensure that the district court committed no significant 

procedural error” and then “consider the substantive reasonableness of the 

sentence.” Gall v. United States, 552 U.S. 38, 51 (2007). Here, Nunez–

Segura contends only that the district court committed procedural error by 

improperly calculating the Guidelines range and does not challenge the 

substantive reasonableness of his sentence.

Nunez–Segura argues that his 2007 California conviction does not 

constitute a drug trafficking offense under § 2L1.2(b)(1)(A)(i) of the 

1 The district court did not adopt the PSR’s recommendation that Nunez–Segura’s 

2006 conviction also supported the application of the sixteen-level sentence enhancement. 

Nor did the government brief the issue on appeal. See, e.g., United States v. Whitfield, 590 

F.3d 325, 346 (5th Cir. 2009) (“[A] party waives any argument that it fails to brief on 

appeal.”). In any event, Nunez–Segura’s 2006 conviction could not have supported a 

sixteen-level sentence enhancement because he did not receive any criminal history points 

for the conviction. U.S.S.G. § 2L1.2(b)(1)(A). Rather, only a twelve-level sentence 

enhancement is appropriate for drug trafficking offenses that do not receive criminal 

history points. Id.

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Guidelines and that it therefore was error for the district court to impose a 

sixteen-level sentence enhancement on that basis. He reasons that his

statute of conviction, section 11379(a) of the California Health and Safety 

Code, encompasses conduct that does not constitute a drug trafficking offense

under the Guidelines. He further contends that, because possession with 

intent to sell is not an element of a section 11379(a) offense, the district court 

incorrectly used the “intent to sell” admission in his waiver and guilty plea to 

determine that his conviction qualified as a drug trafficking offense. We 

agree.

A defendant convicted of illegal reentry, like Nunez–Segura, is subject 

to a sixteen-level sentence enhancement if he was previously convicted of a 

drug trafficking offense. U.S.S.G. § 2L1.2(b)(1)(A)(i). The Guidelines define a 

drug trafficking offense as “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.” Id. § 2L1.2 cmt. 

n.1(B)(iv). Characterization of a prior conviction as a drug trafficking offense 

is a question of law that we review de novo. United States v. Henao–Melo, 

591 F.3d 798, 801 (5th Cir. 2009).

To determine whether a prior conviction constitutes a drug trafficking 

offense, we use the categorical approach outlined in Taylor v. United States, 

495 U.S. 575 (1990). See id. “Under the categorical approach, the analysis is 

grounded in the elements of the statute of conviction rather than a 

defendant’s specific conduct.” Rodriguez, 711 F.3d at 549. Thus, a prior 

conviction qualifies as a drug trafficking offense if the statute of conviction 

matches the definition contained in the Guidelines. See Descamps v. United 

States, 133 S. Ct. 2276, 2283 (2013) (holding that a defendant’s prior

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California burglary conviction did not constitute a violent felony for purposes 

of the Armed Criminal Career Act).2 If, however, the statute of conviction is 

broader than the Guidelines’ definition, the conviction does not qualify “even 

if the defendant actually committed the offense [defined in the Guidelines].” 

See id.; see also Henao–Melo, 591 F.3d at 802 (explaining that under the 

categorical approach, “the court first ‘looks to the elements of [the] prior 

offense, rather than to the facts underlying the conviction’” (alteration in 

original) (quoting United States v. Garza–Lopez, 410 F.3d 268, 273 (5th Cir.

2005))).

Even so, a defendant’s conduct is not completely irrelevant. When the 

statute of conviction is “divisible,” we employ a “modified categorical 

approach.” Descamps, 133 S. Ct. at 2281; see also United States v. Rodriguez, 

523 F.3d 519, 524 (5th Cir. 2008). A divisible statute is one that “sets out one 

or more elements of the offense in the alternative—for example, stating that 

burglary involves entry into a building or an automobile.” Descamps, 133 S. 

Ct. at 2281. Pursuant to the modified categorical approach, a sentencing 

court may consider the defendant’s conduct from documents 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” to ascertain which of the alternative elements of the statute of 

conviction the charged conduct implicated. Shepard v. United States, 544 

U.S. 13, 16 (2005); see also Rodriguez, 523 F.3d at 524 (“If . . . a defendant 

has violated a statute that contains multiple disjunctive sections that 

prohibit conduct that will support a sentence enhancement and other conduct 

2 Although Descamps addressed the use of Taylor’s categorical approach in the 

context of the Armed Criminal Career Act, “[t]his court applies Taylor’s categorical 

approach to interpretations of the Sentencing Guidelines.” United States v. Stoker, 706 

F.3d 643, 648–49 (5th Cir. 2013) (internal quotation marks omitted). 

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that will not support an enhancement, the court may look to ‘certain 

conclusive records made or used in adjudicating guilt’ to determine which 

section applies to the defendant’s conviction.”).3

Critically, as the Supreme Court recently explained in Descamps, the 

modified categorical approach “retains the categorical approach’s central 

feature: a focus on the elements, rather than the facts, of a crime.” 133 S. Ct. 

at 2285. “All the modified approach adds is a mechanism for making [the 

comparison between the statue of conviction and the Guidelines] when a 

statute lists multiple, alternative elements.” See id. It does not permit a 

sentencing court “to look behind [the defendant’s] conviction in search of 

record evidence that he actually committed the [offense defined in the 

Guidelines].” See id. at 2293; see also United States v. Miranda–Ortegon, 670 

F.3d 661, 663 (5th Cir. 2012) (“[W]e may look beyond the elements and the 

fact of conviction only for the limited purpose of ascertaining which of the 

disjunctive elements the charged conduct implicated.”).

Applying these principles to this case, it is undisputed that Nunez–

Segura’s 2007 statute of conviction is a divisible statute, i.e., one that “sets 

out one or more elements of the offense in the alternative.” Descamps, 133 S. 

Ct. at 2281. At the time of Nunez–Segura’s conviction,4 section 11379(a) 

prescribed punishment for “every person who transports, imports into this 

state, sells, furnishes, administers, or gives away, or offers to transport, 

import into this state, sell, furnish, administer, or give away, or attempts to 

import into this state or transport any controlled substance.” 

3 These are known as “Shepard documents.” See, e.g., United States v. Medina–

Torres, 703 F.3d 770, 777 (5th Cir. 2012). 4 California has enacted a new version of section 11379 since Nunez–Segura’s 2007 

conviction. See Cal. Health & Safety Code § 11379 (West 2014).

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Some of these alternative elements fall within the definition of a drug 

trafficking offense under the Guidelines, which covers the manufacture, 

import, export, distribution, dispensing of, or offer to sell a controlled 

substance (or possession with the intent to do these things). See U.S.S.G. 

§ 2L1.2 cmt. n.1(B)(iv). For example, importation of a controlled substance 

falls within the scope of both section 11379(a) and the Guidelines’ definition. 

Other alternative elements do not. See Garza–Lopez, 410 F.3d at 274 

(explaining that section 11379(a) criminalizes some conduct falling outside 

the scope of the Guidelines’ definition of a drug trafficking offense). Thus, 

our inquiry boils down to ascertaining, pursuant to the modified categorical 

approach, which of the alternative elements of section 11379(a) Nunez–

Segura’s conduct implicated. See Rodriguez, 523 F.3d at 524.

To answer that question, we look to Nunez–Segura’s waiver and guilty 

plea for his 2007 conviction, wherein he acknowledged as a factual basis for 

his plea that he “was willfully & unlawfully in possession of 

methamphetamine for transportation & w/the specific intent to sell.” See 

Shepard, 544 U.S. at 26. Comparing this statement to the alternative 

elements of section 11379(a), it is apparent that Nunez–Segura was convicted 

under the “transport” element of section 11379(a).5 According to our binding 

precedent in Garza–Lopez, 410 F.3d at 274, a conviction under the transport 

element of section 11379(a) does not constitute a drug trafficking offense. 

None of the other alternative elements of section 11379(a) apply. As a result, 

Nunez–Segura’s 2007 conviction was not a drug trafficking offense. 

5 Even assuming arguendo that it cannot be determined which of the divisible 

elements Nunez–Segura’s conduct implicated, we then consider “whether the least culpable 

act constituting a violation of [the] statute constitutes” a drug trafficking offense. United 

States v. Moreno–Florean, 542 F.3d 445, 449 (5th Cir. 2008). As we previously determined 

in Garza–Lopez, section 11379(a) punishes at least some conduct that does not constitute a 

drug trafficking offense under the Guidelines. See 410 F.3d at 274.

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The government argues that Nunez–Segura’s admission that he 

possessed methamphetamine with an intent to sell makes his 2007 conviction 

eligible for the sentence enhancement. See U.S.S.G. § 2L1.2 cmt. n.1(B)(iv). 

But possession with intent to sell is not one of the alternative elements of 

section 11379(a) and is therefore irrelevant in applying the modified 

categorical approach in this case. See Descamps, 133 S. Ct. at 2286 

(explaining that whether the defendant actually did break and enter was 

irrelevant because the statute of conviction had no breaking and entering 

element). 

Nor is possession with intent to sell implied in the transport element of 

section 11379(a). The California Supreme Court has said regarding the 

transport element of a similarly worded marijuana statute that “the offense 

of illegal transportation [does not] require[] a specific intent to transport 

contraband for the purpose of sale or distribution.” People v. Rogers, 486 P.2d 

129, 134 (Cal. 1971). Rather, transportation with intent to sell is relevant to 

a different subsection of section 11379. See Cal. Health & Safety Code 

§ 11379(b) (West 2007) (increasing the punishment for the “transport for 

sale” of a controlled substance). Nunez–Segura was not charged or convicted 

under that statute.

Finally, the government argues that we should follow the Ninth 

Circuit’s approach in United States v. Delgado–Moreno, 495 F. App’x 847 (9th 

Cir. 2012), where the court held under similar circumstances that a 

defendant’s prior conviction under section 11379(a) constituted a drug 

trafficking offense. We disagree. First, Delgado–Moreno is an unpublished 

Ninth Circuit case issued prior to the Supreme Court’s decision in Descamps, 

which reversed the Ninth Circuit’s application of the modified categorical 

approach. See Descamps, 133 S. Ct. at 2293. Second and more importantly, 

the Delgado–Moreno court employed the modified categorical approach in the 

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manner rejected by the Supreme Court in Descamps. That is, it did not use 

the applicable Shepard document solely to determine which of the alternative 

elements of the statute of conviction formed the basis of the defendant’s 

conviction. See Delgado–Moreno, 495 F. App’x at 849. Rather, it used the 

Shepard document to determine whether the defendant actually committed 

the offense defined in the Guidelines. Compare id. with Descamps, 133 S. Ct. 

at 2293 (explaining that a sentencing court may not “look behind [the 

defendant’s] conviction in search of record evidence that he actually 

committed the [offense]”).

For the foregoing reasons, we VACATE Nunez–Segura’s sentence and 

REMAND for resentencing. 

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