CA5

United States v. Palacios-Quinonez (Smith, J.)

This is a post-Booker sentencing case that doesn't involve any substantial Booker issues.  First, the Court holds that it was not plain error to conclude that a conviction under California law for "possession for sale" of cocaine was a drug trafficking offense under USSG 2L1.2(b)(1)(A).  The defendant's argument seems to be that the Guideline enhancement requires possession of the drug, but California law permits conviction in some circumstances absent actual or constructive possession.  The Fifth Circuit parses California case law and concludes that a conviction under California law cannot occur absent actual or constructive possession.

Strangely, the Fifth Circuit ends up disagreeing with the Ninth Circuit on this issue.  One might think the Fifth Circuit would show some deference to the Ninth Circuit's understanding of California law.