Divided Panel Upholds Drug Conviction Enhancement in Reentry Case

United States v. Torres-Romero, ___ F.3d ___, 2008 WL 3843344 (10th Cir. 2008)
Defendant was convicted of illegal entry after deportation. The COA held that his prior Colorado drug conviction was properly treated as a qualifying
“drug trafficking offense” for the 16 point guideline enhancement. The COA looked only at the state information, and the judgment that stated D had pleaded guilty to the information, to support its decision, even though it appeared that the information parroted the broad language of the statute that included both possession and trafficking acts. Because under 10th Cir. law and under Colorado law, a “plea admits all material allegations already contained in the indictment,” this was sufficient to establish that D had been convicted of a qualifying drug trafficking offense.

Hartz dissented. Under the Taylor/Shepard line of cases, additional evidence, such as an admission in a plea agreement or during a plea colloquy would be necessary to establish that Defendant's Colorado conviction was for a drug-trafficking offense. Hartz did not buy the majority’s glossing over the “either/or” problem by interpreting the plea unrealistically as “and”: guilty of possessing and trafficking.