United States v. Trejilio Garcia-Vasquez ( 2023 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_______________
No. 22-2219
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UNITED STATES OF AMERICA
v.
TREJILIO GARCIA-VASQUEZ, a/k/a Trejelio Garcia,
Appellant
_______________
On Appeal from the United States District Court
for the District of New Jersey
(No. 2-18-cr-00508-001)
District Judge: Honorable Katharine S. Hayden
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Argued: April 25, 2023
Before: KRAUSE, BIBAS, and RENDELL, Circuit Judges
(Filed: June 5, 2023)
_______________
Louise Arkel
Evan J. Austin [ARGUED]
Saverio A. Viggiano
FEDERAL PUBLIC DEFENDER’S OFFICE
1002 Broad Street
Newark, NJ 07102
Counsel for Appellant
Mark E Coyne
John F. Romano [ARGUED]
U.S. ATTORNEY’S OFFICE
970 Broad Street, Room 700
Newark, NJ 07102
Counsel for Appellee
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OPINION OF THE COURT
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BIBAS, Circuit Judge.
Courts must read broad phrases broadly. Trejilio Garcia-
Vasquez was convicted of a drug-trafficking conspiracy and
deported. Then he reentered the country illegally. After he
pleaded guilty to illegal reentry, the judge enhanced his sen-
tence based on his conspiracy conviction. He disputes that en-
hancement, claiming that his drug-trafficking-conspiracy con-
viction does not count as a “drug trafficking offense” because
it did not require selling drugs. But the phrase is broad enough
to reach drug-trafficking conspiracies even without an overt
act. So we will affirm his sentence.
I. GARCIA-VASQUEZ’S COCAINE CONSPIRACY,
DEPORTATION, AND REENTRY
Garcia-Vasquez is a native and citizen of the Dominican
Republic. He first came to the United States illegally in the
1990s. Once here, he joined a drug-trafficking ring. He was
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arrested and, in 1999, convicted of conspiring to distribute and
to possess with intent to distribute cocaine, in violation of 21
U.S.C. § 846. After serving his seventy-month federal prison
sentence, he was removed to the Dominican Republic in 2003.
Garcia-Vasquez later returned to the United States illegally.
And he returned to dealing drugs. He was arrested and con-
victed in New Jersey state court of distributing heroin and other
drug offenses and, in 2019, sentenced to ten years’ imprison-
ment. The next year, New Jersey released him to federal immi-
gration authorities.
After that, Garcia-Vasquez pleaded guilty to reentering the
country illegally after having been convicted of an aggravated
felony and removed, in violation of 8 U.S.C. § 1326(a), (b)(2).
At his first sentencing, the judge used the wrong edition of the
Sentencing Guidelines Manual. So this Court vacated and re-
manded for resentencing.
At resentencing, the parties disputed how much to enhance
Garcia-Vasquez’s illegal-reentry sentence based on his 1999
cocaine-conspiracy conviction. The government advocated a
sixteen-level enhancement under Sentencing Guideline
§ 2L1.2(b)(1)(A)(i) (2015). Indeed, the Guideline’s Applica-
tion Note 5 extends that enhancement to inchoate crimes like
conspiracy. § 2L1.2 cmt. n.5. But Garcia-Vasquez objected
that application notes may not extend the reach of the Guide-
line’s text. He added that, under the categorical approach, his
federal conspiracy conviction did not count as a generic con-
spiracy because its elements did not require an overt act.
The District Court agreed with the government and applied
the sixteen-level enhancement. It sentenced him to forty-six
3
months’ imprisonment, the bottom of the enhanced range, fol-
lowed by one year’s supervised release.
Garcia-Vasquez now appeals. The parties do not dispute
any facts but disagree about how to read the Guideline. We re-
view that pure issue of law de novo. United States v. Nasir, 17
F.4th 459, 468 (3d Cir. 2021) (en banc).
One procedural note: Even though Garcia-Vasquez has just
finished his prison term and may soon be removed, this case is
not moot. If we granted relief, the District Court on remand
could credit any excess imprisonment against his remaining su-
pervised-release term. That possibility is enough to keep this
case alive. United States v. Prophet, 989 F.3d 231, 235 (3d Cir.
2021). So we proceed to the merits.
II. “DRUG TRAFFICKING OFFENSE”
INCLUDES CONSPIRACIES
Garcia-Vasquez argues that his 1999 conviction was only
for conspiring to traffic drugs, not actually trafficking them. He
relies on our recent en banc decision in Nasir, which held that
an application note may not expand a guideline’s text to reach
inchoate crimes. 17 F.4th at 468–72. Here, he observes, only
Application Note 5 names inchoate crimes expressly. But the
plain meaning of “drug trafficking offense” already includes
drug-trafficking conspiracies. So we need not resort to the ap-
plication notes.
A. “Offense” reaches the broad family of drug-
trafficking crimes, including conspiracies
We start with the text. The illegal-reentry Guideline differs
materially from the one in Nasir. It requires that Garcia-
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Vasquez’s prior conviction be “a drug trafficking offense for
which the sentence imposed exceeded 13 months.” U.S.S.G.
§ 2L1.2(b)(1)(A)(i) (2015). Its text does not define “drug traf-
ficking offense”; only the application notes do. By contrast, the
text of Nasir’s career-offender guideline did define “controlled
substance offense” and omitted inchoate crimes. U.S.S.G.
§ 4B1.2(b). Nasir refused to let the commentary expand the
textual definition to reach inchoate crimes too. But here, there
is no textual definition. So we must give the phrase “a drug
trafficking offense” its ordinary meaning.
Garcia-Vasquez says he was never convicted of drug traf-
ficking. Trafficking, he insists, requires buying, selling, deal-
ing, and the like. But conspiring requires only an agreement,
not trading or even negotiating. See United States v. Shabani,
513 U.S. 10, 17 (1994). We accept that reading for the sake of
argument. But the Guideline’s ordinary meaning goes beyond
actual trafficking to include any drug-trafficking offense. It
captures conspiracies.
1. “A[n] … offense” defines a family of related crimes. The
word “offense” is not surplusage. American law commonly
uses “offense” to refer to a group of crimes. Black’s Law Dic-
tionary lists dozens of compound nouns in which a term mod-
ifies “offense.” Each compound refers to a category, often a
broad family, rather than a specific crime. Examples include
“offense against property,” “offense against the person,” and
“sexual offense.” Offense (def. 1), Black’s Law Dictionary (7th
ed. 1999) (two years before the phrase was added to the Guide-
line). And though a specific crime requires specific elements,
these groupings share only family resemblances. In other
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words, they need not all have the same necessary or sufficient
conditions, but only recognizable similarities.
Plus, the Guideline refers to “a” drug-trafficking offense,
meaning one out of many. In combination, “[t]he use of the
indefinite article ‘a[ ] ’ and the addition of ‘offense’ at the
phrase’s end indicates that the phrase … is meant to refer not
just to [the offense] per se but to a family of offenses that are
in some sense related to” it. United States v. Martinez-
Candejas, 347 F.3d 853, 856 (10th Cir. 2003) (McConnell, J.)
(addressing “an alien smuggling offense” under the same
Guideline); see also Hernandez-Mancilla v. INS, 246 F.3d
1002, 1008 (7th Cir. 2001) (same, for “theft offense”).
2. The family of “drug trafficking offense[s]” includes
conspiracies. Of course, a conspiracy is an “offense.” See, e.g.,
Conspiracy, Black’s Law Dictionary (7th ed. 1999). The ques-
tion is what kind of offense. Inchoate offenses are their own
family. See Offense (def. 1), id. Yet conspiracies are also “de-
fined by the scope of [their] commitment[s].” United States v.
Smith, 82 F.3d 1261, 1272 (3d Cir. 1996). Put more colorfully,
conspiracy is “chameleon-like, tak[ing] on a special coloration
from each of the many independent offenses on which it may
be overlaid.” Krulewitch v. United States, 336 U.S. 440, 447
(1949) (Jackson, J., concurring).
Under § 846, the conspiracy takes its hue from drug traf-
ficking. We have called § 846 convictions “drug-trafficking
conspiracies” in which “the ‘offense’ conspired is a violation
of § 841(a).” United States v. Williams, 974 F.3d 320, 363 (3d
Cir. 2020). We have further explained that a “conspiracy under
§ 846 becomes a drug-trafficking conspiracy when [its]
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common goal is a violation or violations of § 841(a).” Id. at
371. It requires the same intent and aims at the same goal: traf-
ficking drugs. Id. at 362–63. And the conspiracy and its object
are even “subject to the same penalties.” § 846. (That fact re-
futes Garcia-Vasquez’s suggestion that conspiracies are not se-
rious enough to merit the same enhancements as completed
crimes.) So his conspiracy offense for agreeing to traffic drugs
is, naturally, a drug-trafficking offense.
Courts commonly use “offense” to include a conspiracy to
commit that offense. That is how the Supreme Court used a
nearly identical phrase in Smith v. United States, 508 U.S. 223(1993). The Court described Smith’s indictment as including
“two drug trafficking crimes—conspiracy to possess cocaine
with intent to distribute and attempt to possess cocaine with
intent to distribute.” Id. at 226. It then used the terms “drug
trafficking crime” and “drug trafficking offense” interchange-
ably. See, e.g., id. at 227. As it happens, Smith’s cocaine-
conspiracy conviction under § 846 is the very same conviction
on Garcia-Vasquez’s rap sheet.
We and our sister circuits have likewise mentioned that
conspiracies are included in the other categories of “offenses”
listed in the Guideline. See, e.g., United States v. Salamone,
902 F.2d 237, 238 (3d Cir. 1990) (including among “various
firearms offenses” “conspiracy to violate the federal firearms
laws by falsifying firearms transaction records”); United States
v. Williams, 449 F.3d 635, 639 (5th Cir. 2006) (Higginbotham,
J.) (including among “various alien smuggling offenses” “con-
spiracy to conceal, harbor, shield from detection, and transport
illegal aliens”). And when we have excluded inchoate crimes,
it is when the definition in a Guideline’s text has done so. See
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United States v. Abreu, 32 F.4th 271, 276–77 (3d Cir. 2022)
(excluding conspiracies from “crime[s] of violence”); Nasir,
17 F.4th at 468–72 (excluding attempts from “controlled sub-
stance offense[s]”).
3. Garcia-Vasquez’s responses fail. Taken to its logical
conclusion, Garcia-Vasquez’s argument would lead to a “bi-
zarre result.” United States v. Dawson, 32 F.4th 254, 265 (3d
Cir. 2022). It would limit drug-trafficking offenses to those that
require “trading in or dealing” drugs. Appellant’s Br. 25. That
reading would exclude manufacturing drugs or possessing
them with intent to distribute them. Yet “the paradigmatic”
federal drug-trafficking offense includes both manufacturing
and possession with intent to distribute. Dawson, 32 F.4th at
265 (citing 21 U.S.C. § 841(a)(1)). Neither activity requires
trading or dealing, so convictions under § 841(a)(1) would not
count. Excluding the federal drug-trafficking offense from the
Guideline’s drug-trafficking-offense enhancement would be
strange if not “absurd.” Dawson, 32 F.4th at 265.
Garcia-Vasquez has two fallback arguments. First, he tries
to use the definition of “drug trafficking offense” from Appli-
cation Note 1(B)(iv) (which includes only completed crimes)
while rejecting Application Note 5’s expansion of that defini-
tion to inchoate crimes. U.S.S.G. § 2L1.2 cmt. nn.1(B)(iv), 5
(2015). But he cannot have it both ways. Neither Note can
change the meaning of “drug trafficking offense.”
Second, he says that even if conspiracies are included in
“drug trafficking offense,” federal conspiracies do not count as
“conspiracies” because they do not require an overt act. But
this response answers the wrong question. This case turns on
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the meaning of “drug trafficking offense,” not “conspiracy.”
Even if the federal conspiracy offense is atypical, it is undoubt-
edly an “offense.” Though an overt act might bring a defendant
closer to actual drug trafficking, it does not affect whether a
drug-trafficking conspiracy is part of the drug-trafficking-of-
fense family.
B. The Guideline’s structure is not to the contrary
Garcia-Vasquez next contrasts this Guideline with others.
Because nineteen Guidelines expressly include conspiracies,
he infers that the Commission deliberately omitted conspira-
cies from this Guideline. But his inference is weak: Those
Guidelines refer to conspiracies just in their titles, which are
relevant only as far as they clarify ambiguity in their Guide-
lines’ text. See Carter v. United States, 530 U.S. 255, 267
(2000). And they are offense Guidelines, merely referring to
the specific provision for calculating conspiracy base-offense
levels. See U.S.S.G. § 2X1.1. Plus, there is a competing infer-
ence: other Guidelines leave conspiracies out. See, e.g., Nasir,
17 F.4th at 471–72. This Guideline is silent. So we will not
draw either inference.
C. The Guideline’s amendment history confirms our
reading
Garcia-Vasquez next points to the Guideline’s amendment
history, but it cuts against him. Before the 2001 amendments
to the Sentencing Guidelines, § 2L1.2 applied a sixteen-level
enhancement for any prior “aggravated felony.” U.S.S.G.
§ 2L1.2(b)(1)(A) (1997).
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After the 2001 amendments, the Guidelines directed the
sentencing judge to “[a]pply the [g]reatest” of a series of en-
hancements. § 2L1.2(b)(1) (2001). The enhancement for “an ag-
gravated felony” was reduced to eight levels. § 2L1.2(b)(1)(C)
(2001). The sixteen-level enhancement was now reserved for a
specific list of offenses: drug-trafficking offenses, crimes of
violence, firearms offenses, child-pornography offenses,
national-security or terrorism offenses, human-trafficking of-
fenses, and alien-smuggling offenses. § 2L1.2(b)(1)(A) (2001).
This history is revealing. Cf. Bittner v. United States, 143
S. Ct. 713, 722 (2023) (analyzing a statute’s amendment his-
tory). The specific list of crimes is simply a subset of the longer
list of aggravated felonies. This sentencing enhancement is in
the “Immigration” part of the Guidelines. U.S.S.G. pt. L(1).
The Sentencing Commission wrote its terms to effectuate im-
migration law. And the term “aggravated felony” is a “term of
art” extensively defined in the “Immigration and Nationality”
chapter of the U.S. Code. Biskupski v. Att’y Gen., 503 F.3d 274,
280 (3d Cir. 2007); 8 U.S.C. ch. 12. So it follows that we look
to that Chapter’s definition of “aggravated felony.”
There, we find subsections closely associated with each
item in the Guideline’s list. See 8 U.S.C. § 1101(a)(43)(B)
(“drug trafficking crime (as defined in section 924(c) of Ti-
tle 18)”), (F) (“crime of violence (as defined in section 16 of
Title 18)”), (E)(ii)–(iii) (“firearms offenses”), (I) (“offense …
relating to child pornography”), (L) (disclosing classified in-
formation, sabotage, treason), (K) (prostitution, peonage, slav-
ery), (N) (“offense … relating to alien smuggling”).
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The Guidelines work hand in glove with the substantive
criminal law. The neat overlap here is thus strong evidence that
“drug trafficking offense” in the Guideline should be read in
light of “drug trafficking crime” as defined by statute under
“aggravated felony.” (We should not read much into the differ-
ence between “crime” and “offense”; the choice of the latter
might simply have been to match the other items in the Guide-
line’s list.) That statutory definition refers us to 18 U.S.C.
§ 924(c). And § 924(c)(2) includes conspiracies. Thus, read in
all relevant context, “drug trafficking offense” includes
conspiracies.
D. Because no ambiguity remains, we need not resort
to lenity or deference
Finally, Garcia-Vasquez argues that, at a minimum, we
must apply the rule of lenity and read the Guideline in his fa-
vor. The government, on the other hand, asks us to defer to the
Sentencing Commission’s application notes under Kisor v.
Wilkie, 139 S. Ct. 2400, 2415–16 (2019). But we need not resort
to either approach. The Guideline’s text, structure, and amend-
ment history leave no ambiguity to resolve. Drug-trafficking of-
fenses include conspiracies, not just completed crimes.
*****
The illegal-reentry Sentencing Guideline applied its sixteen-
level enhancement to anyone with a prior conviction for a
“drug trafficking offense.” U.S.S.G. § 2L1.2(b)(1)(A)(i)
(2015). That enhancement’s text captured a wide swath of “of-
fense[s],” both completed and inchoate, and even conspiracies
without overt acts. So we need not consider the Guideline’s
commentary or the rule of lenity and will affirm.
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