United States v. Juan Rivera-Constantino

Opinion by Judge CLIFTON; Dissent by Judge PAEZ.

OPINION

This sentencing appeal requires us to answer the following question: Is a federal drug trafficking conspiracy conviction a conviction for conspiracy to commit a drug trafficking offense? Or, to put it more precisely, does a prior federal conviction for •conspiring to possess marijuana with intent to distribute, 21 U.S.C. §§ 846 , 841(a)(1), constitute a prior conviction for “conspiring! ] ... to commit” a “drug traf *902 ficking offense” as that phrase is used in the commentary to section 2L1.2(b)(l) of the Sentencing Guidelines, thereby making a defendant subject to a 16-level sentencing enhancement? No matter how the question is phrased, the answer, we conclude, is “yes.” We thérefore affirm the sentence that Defendant Juan Manuel Rivera-Constantino received and that he now challenges on appeal..

I. Background

In 2011, Rivera-Constantino was convicted of conspiracy to possess with intent to distribute approximately 195 kilograms of marijuana, a violation of 21 U.S.C. §§ 846 , 841(a)(1). He was sentenced to 24 months in prison and 36 months of supervised release. Although Rivera-Constantino was deported to Mexico in…

dissenting.

I respectfully dissent. The majority attempts to distinguish United States v. Garcia-Santana, 774 F.3d 528 (9th Cir.2014), and to sidestep the Taylor 1 categorical approach to hold that a conspiracy conviction under 21 U.S.C. § 846 qualifies categorically as a drug trafficking offense, warranting the sixteen-level enhancement under U.S.S.G. § 2L1.2(b)(l)(A)(i). Because I would follow Garcia-Santana , I would hold that where a prior conspiracy conviction under § 846 does not require proof of an overt act, it does not qualify categorically as a drug trafficking offense for purposes of the § 2L1.2(b)(l)(A)(i) enhancement. I therefore would vacate the district court’s sentence, and remand for consideration of whether Rivera-Constantino’s prior conviction under § 846 warrants an eight-level enhancement under U.S.S.G. § 2L1.2(b)(l)(C) as an aggravated felony for “illicit trafficking in a controlled substance (as defined in section 802 of Title 21), including a drug trafficking crime (as defined in section 924(c) of Title 18),” 8 U.S.C. § 1101 (a)(43)(B).

1. The majority recognizes that we already have defined the generic offense of conspiracy, Maj. Op. at 903 (citing…

I. Background

In 2011, Rivera-Constantino was convicted of conspiracy to possess with intent to distribute approximately 195 kilograms of marijuana, a violation of 21 U.S.C. §§ 846, 841(a)(1). He was sentenced to 24 months in prison and 36 UNITED STATES V. RIVERA-CONSTANTINO

months of supervised release. Although Rivera-Constantino was deported to Mexico in 2011, he returned to the United States in August 2013 and was arrested. In March 2014, a jury found him guilty of one count of illegal reentry, 8 U.S.C. § 1326. In calculating the advisory range under the Sentencing Guidelines, the district court imposed a 16-level enhancement on the basis that Rivera-Constantino’s prior conviction for conspiracy to possess marijuana with intent to distribute was a predicate drug trafficking offense under U.S.S.G. § 2L1.2(b)(1). Rivera-Constantino objected to the application of this enhancement, but his objection was overruled. The district court imposed a sentence of 51 months in prison and 36 months of supervised release. That sentence was within the Guidelines range, including the 16- level enhancement. This appeal followed.

II. Discussion

Rivera-Constantino argues that the…