USA v. Jose Vela-Miranda, No. 12-3620 (3d Cir. 2013)

Annotate this Case

Download PDF

NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ____________ No. 12-3620 ____________ UNITED STATES OF AMERICA v. JOSE LUIS VELA-MIRANDA, a/k/a Juan Vela Oronia JOSE LUIS VELA-MIRANDA, Appellant ____________ On Appeal from the United States District Court for the Western District of Pennsylvania (D.C. No. 1-11-cr-00072-001) District Judge: Honorable Maurice B. Cohill, Jr. ____________ Submitted Pursuant to Third Circuit LAR 34.1(a) May 15, 2013 Before: SMITH, FISHER and CHAGARES, Circuit Judges. (Filed: August 7, 2013) ____________ OPINION OF THE COURT ____________ FISHER, Circuit Judge. Jose Luis Vela-Miranda appeals from the sentence imposed by the District Court following his conviction for unauthorized reentry under 8 U.S.C. § 1326. We will affirm. I. Because we write principally for the parties, who are familiar with the factual context and legal history of this case, we will set forth only those facts that are necessary to our analysis. Vela-Miranda was born in Mexico and legally immigrated to the United States in 1980. In July 2006, Vela-Miranda pleaded guilty in Wisconsin state court to conspiracy to deliver between 200 and 1,000 grams of tetrahydrocannabinols ( THC ), in violation of Wis. Stat. § 961.41(h)(2). The court sentenced Vela-Miranda to three months imprisonment and two years probation. In March 2007, Vela-Miranda was removed to Mexico. In October 2011, Vela-Miranda was stopped for speeding in Ohio. After Ohio police contacted federal authorities, Vela-Miranda was taken into custody and admitted to reentering the country illegally. In March 2012, Vela-Miranda pleaded guilty in the United States District Court for the Western District of Pennsylvania to illegal reentry, in violation of 8 U.S.C. § 1326. In the presentence report, the Probation Office determined that Vela-Miranda s felony conviction in Wisconsin constituted a drug trafficking offense under U.S.S.G § 2L1.2(b)(1)(B), which resulted in a 12-point offense level enhancement. Given Vela-Miranda s criminal history category of II, this enhancement resulted in a guideline range of 27-33 months. Vela-Miranda objected to the enhancement, but the District 2 Court overruled his objection and sentenced him to 27 months imprisonment followed by three years of supervised release. Vela-Miranda s timely appeal to this Court followed. II. The District Court had jurisdiction over this case under 18 U.S.C. § 3231. We have appellate jurisdiction under 18 U.S.C. § 3742 and 28 U.S.C. § 1291. We review a district court s interpretation of the Sentencing Guidelines de novo. United States v. Pojilenko, 416 F.3d 243, 246 (3d Cir. 2005). III. Vela-Miranda argues that the District Court erred in applying a 12-level enhancement because his conviction under Wis. Stat. § 961.41(h)(2) does not qualify as a felony drug trafficking offense under U.S.S.G. § 2L1.2(b)(1)(B). We disagree. Section 2L1.2(b)(1)(B) of the Sentencing Guidelines provides for a 12-point offense level enhancement for a defendant convicted of unlawful reentry who previously was deported, or unlawfully remained in the United States, after . . . a conviction for a felony drug trafficking offense for which the sentence imposed was 13 months or less. Application Note 1(B)(iv) of § 2L1.2 defines 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 3 substance) or the possession of a controlled substance (or a counterfeit substance) with intent to manufacture, import, export, distribute, or dispense. To determine whether a prior conviction under a state statute triggers a sentencing enhancement, we employ the formal categorical approach, under which we look to the statutory definition of the prior offense rather than to the particular facts underlying the conviction. Taylor v. United States, 495 U.S. 575, 600 (1990). Vela-Miranda argues that his conviction does not qualify as a drug trafficking offense under the formal categorical approach because Wis. Stat. § 961.41 prohibits a range of conduct that is broader than the definition of drug trafficking offense in § 2L1.2. Specifically, Vela-Miranda points out that the Wisconsin statute under which he was convicted makes it unlawful to manufacture, distribute or deliver a controlled substance, § 961.41(1), and that the verb deliver is not contained in the definition of drug trafficking offense in § 2L1.2. A quick trip through Wisconsin s criminal statutes shows the error in this argument. Wisconsin s Uniform Controlled Substances Act defines delivery as the actual, constructive, or attempted transfer from one person to another of a controlled substance or controlled substance analog, whether or not there is an agency relationship. Wis. Stat. § 961.01(6). The Act defines dispense as to deliver a controlled substance to an ultimate user or research subject by or pursuant to the lawful order of a practitioner, including the prescribing, administering, packaging, labeling or compounding necessary 4 to prepare the substance for that delivery. § 961.01(7). Likewise, the Act defines distribute as to deliver other than by administering or dispensing a controlled substance or controlled substance analog. § 961.01(9). Wisconsin s definition of delivery fully incorporates its definitions of dispense and distribute ; put another way, under Wisconsin law, one cannot deliver[] a controlled substance without either dispens[ing] or distribut[ing] it. Although Vela-Miranda correctly points out that the term delivery is not contained within the definition of drug trafficking offense in § 2L1.2, the terms distribution and dispensing are. See U.S.S.G. § 2L1.2 cmt. n.1(B)(iv) ( Drug trafficking offense means 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. . . . ). Therefore, a conviction under Wis. Stat. § 961.41 categorically qualifies as a felony drug trafficking conviction as that term is used in § 2L1.2(b)(2)(B).1 The District Court did not err when it applied the 12-level enhancement. IV. For the reasons set forth above, we will affirm the order of the District Court. 1 Application Note 2 of § 2L1.2 defines a felony as any federal, state, or local offense punishable by imprisonment exceeding one year. Vela-Miranda s conviction under Wis. Stat. § 961.41(h)(2) was a Class H felony punishable by up to six years in prison. See Wis. Stat. § 939.50(3)(h). 5

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.