In U.S. v. Aguilar-Ortiz, No. 05-12591 (May 31, 2006), the Court (Tjoflat, Barkett, Goodwin b.d.) vacated a sentence, holding that the district court erred in its Guideline analysis when it treated the defendant’s prior Florida state conviction for solicitation to deliver cocaine as a "drug trafficking offense" for purposes of imposing a 12-level enhancement for being found guilty in the United States after deportation.
The Court noted that under Shepard v. U.S., 544 U.S. 13 (2005), when a court determines whether a prior conviction qualifies for a sentencing enhancement, it may rely on the charging document, written plea agreement, transcript of plea colloquy, and explicit judicial fact-finding. The Court noted that not all Florida solicitation offenses qualify as drug trafficking offenses, because some involve a small amount of drugs for personal use. Examining Aguilar-Ortiz’ prior conviction, the Court concluded that his solicitation offense, which involved the attempted purchase of $30 of crack cocaine from an undercover agent, was akin to attempted possession without intent to distribute. Hence, the conviction did not qualify as a drug trafficking offense, and was not a correct basis for imposing the 12-level enhancement.
