TX Offense of Possession of More than 50 Pounds of MJ not a "Drug Trafficking Offense" under USSG 2L1.2

US v. Herrera-Roldan, 2005 WL 1635366, 10th Cir.(N.M.), Jul 13, 2005: Government loses appeal of sentence in reentry case. Mr. Herrera had a prior Texas conviction for possession of more than 50 pounds, but less than 2000 pounds. The government sought to have Mr. Herrera's base offense level under USSG 2L1.2 increased 12 levels based on this conviction, arguing it was actually a drug trafficking offense. Mr. Herrera argued that it was a simply an 8-level aggravated felony. The district court agreed with Mr. Herrera, and on appeal, so did the Tenth Circuit. The COA rejected the government's argument that the required intent to distribute could be inferred from the quantity required for conviction under the Texas statute, even though the statute itself requires no such intent. The Tenth Circuit, however, stated that the focus in the guidelines is not on the defendant's conduct, but on what the state law prohibits. Thus, the COA would not draw inferences about Mr. Herrera's intent to distribute from the underlying conduct. The COA also rejected the government's argument that the Texas statutory scheme allowed a court to infer intent to distribute. On the contrary, the COA noted that possession of 50-2000 pounds of marijuana is a second-degree felony, but delivery of that amount of marijuana is punished more severely as a first-degree felony. "[W]e are left with the conclusion, based solely on the fact of conviction and the terms of the Texas statute, that Mr. Herrera's prior conviction was not a 'drug trafficking offense' under U.S.S.G. 2L1.2(b)(1)(B)."