United States v. Burgos-Ortega

A criminal conviction under an overbroad state statute will still qualify as a sentencing enhancement under federal sentencing law if there is no realistic probability that an individual could be prosecuted under the overbroad portion of the state statute.

Alejandro Burgos-Ortega is a Mexican citizen who has illegally entered the United States multiple times. Ortega was arrested a day after he last reentered the country, in November, 2012, and subsequently pled guilty to illegal reentry. The presentence report, which establishes guidelines for sentence lengths in illegal reentry cases, suggested that he receive a 12-level increase in his sentence based on his prior criminal history. Ortega contests the 12-level increase because he believes that the Washington statute that was the basis of his 1992 conviction for drug trafficking is overbroad and therefore does not qualify as a sentencing enhancement under federal law. On appeal, the Ninth Circuit explained that, a state statute will qualify as a sentencing enhancement under federal law as long as the state statute does not criminalize conduct that would not be considered an offense under federal law. If the state statute is overbroad, a prior conviction under the state statute will not be a suitable basis for enhancing an individual’s criminal sentence. Ortega believes that the state statute is overbroad because it criminalizes “administration” of a drug where the federal statute does not. The panel disagreed with Ortega, and insists that he failed to show that there was a realistic probability for an individual to be prosecuted for administering a drug under the Washington statute. The panel held that because there is no realistic probability that one could be prosecuted under the Washington statute for administration of a controlled substance, that it is not overbroad and Ortega’s enhanced sentence was appropriate. AFFIRMED.