Appeal fro the United States District Court for the Southern District of Texas.
For UNITED STATES OF AMERICA, Plaintiff - Appellee: Paula Camille Offenhauser, Assistant U.S. Attorney, Renata Ann Gowie, Assistant U.S. Attorney, Katherine Lisa Haden, Assistant U.S. Attorney, U.S. Attorney's Office, Southern District of Texas, Houston, TX.
For JUAN FRANCISCO MARTINEZ-LUGO, Defendant - Appellant: Marjorie A. Meyers, Federal Public Defender, Philip G. Gallagher, Assistant Federal Public Defender, Michael Lance Herman, Assistant Federal Public Defender, Federal Public Defender's Office, Southern District of Texas, Houston, TX.
Before DAVIS, DENNIS, and COSTA, Circuit Judges. GREGG COSTA, Circuit Judge, dissenting.
W. EUGENE DAVIS, Circuit Judge:
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 months based upon Martinez's 2002 Georgia conviction for possession with intent to distribute marijuana. For the reasons set out below, we VACATE the sentence and REMAND.
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 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, 185 L.Ed.2d 727 (2013). 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 offense under . . . § 2L1.2(b)(1)(A)(i)."  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." 
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."  " We review a district court's conclusion that a prior state conviction constitutes a drug trafficking offense de novo." 
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, and he argues that the Georgia statute is overbroad because it also criminalizes possession with intent to distribute for no remuneration. On the other hand, the Application Note to § 2L1.2(b)(1)(A)(i) seems to define as a " drug trafficking offense" precisely the type of conviction at issue here.
Section 2L1.2(b)(1)(A)(i) ...