UNITED STATES of America, Plaintiff-Appellee,
v.
Modesto HERNANDEZ, Defendant-Appellant.

No. 97-4012.
United States Court of Appeals,
Eleventh Circuit.
July 17, 1998.

Kathleen M. Williams, Federal Public Defender, Wendy L. Short and Richard C. Klugh, Asst. Fed. Pub. Defenders, Miami, FL, for Defendant-Appellant.
William A. Keefer; Dawn Bowen, Marc Fagelson and Nina Stillman Mandel, Asst. U.S. Attys., Miami, FL, for Plaintiff-Appellee.
Appeal from the United States District Court for the Southern District of Florida.

Before EDMONDSON and BIRCH, Circuit Judges, and FAY, Senior Circuit Judge.

FAY, Senior Circuit Judge:
On September 23, 1996, a jury found appellant Modesto Hernandez guilty of possession of a firearm by a convicted felon, possession of cocaine with the
intent to distribute, and use of a firearm in relation to a drug trafficking crime. He was sentenced to 387 months of imprisonment and was to be deported upon the completion of his imprisonment as a condition of his supervised release. On appeal, he argues that his conviction on the three counts is tainted by the prosecution's improper closing argument and by other prosecutorial misconduct. Hernandez also challenges the sentence imposed, arguing that the district court erred in determining that his prior narcotics convictions qualified him as a career offender under > U.S.S.G. S 4B1.1. For the following reasons, we affirm the conviction, vacate the sentence, and remand for resentencing.

*****

In 1993, Hernandez pled nolo contendere to two separate narcotics offenses pursuant to > Florida Stat. S 893.13(1)(a), which in 1993 stated, "it is unlawful for any person to sell, purchase, manufacture, deliver, or possess with the intent to sell a controlled substance." [FN8] The language in Hernandez's 1993 Florida state convictions tracked the language in the statute and thus did not indicate whether his convictions were for the purchase of controlled substances or for the sale of controlled substances. The difference is an important one because under > U.S.S.G. S 4B1.2(b), a conviction for the mere purchase of controlled substances is not a "controlled substance offense" necessary for the "career offender" enhancement under > U.S.S.G. S 4B1.1.

Despite the apparent ambiguity of the language of the statute and of the convictions, the probation officer in preparing Hernandez's PSI used these 1993 convictions to enhance Hernandez's sentence as a "career offender." When Hernandez objected to the PSI and pointed out the existing ambiguity to the district court at the sentencing hearing, the district court resolved the ambiguity by reading the arrest affidavits supporting Hernandez's 1993 convictions. The district court determined that it was abundantly clear from the affidavits that Hernandez was arrested each time for the sale of controlled substances. The district court then enhanced Hernandez's sentence pursuant to the "career offender" enhancement of > U.S.S.G. S 4B1.1.

Hernandez is correct in his argument that the district court erred in resolving the ambiguity in the 1993 convictions in the manner in which it did. It is not the conduct for which Hernandez was arrested which is the determining factor of whether each 1993 conviction was a "controlled substance offense." Rather, the focus of the inquiry must be upon "the conduct of which the defendant was convicted." > Spell, 44 F.3d at 940, quoting > U.S.S.G. S 4B1.2, comment (n.2). Here, while it may be clear what Hernandez was arrested for, it is unclear exactly what Hernandez pled to, and consequently the district court did not have the evidence before it necessary to enhance Hernandez's sentence under > U.S.S.G. S 4B1.1. "The fact that Appellant's conviction was obtained through a plea agreement heightens our concern that Appellant's sentence enhancement may rely upon a crime for which he was never convicted." > Spell, 44 F.3d at 940. The burden of proof for establishing that a sentence enhancement is warranted lies with the prosecution and it is the duty of the district court to insure that the prosecution carries its burden of proof. See > United States v. Lawrence, 47 F.3d 1559, 1566-69 (11th Cir.1995). The inquiry in resolving the ambiguity of the 1993 convictions should not involve a retrial of the prior convictions, but should be limited to examining easily produced and evaluated court documents, such as any helpful plea agreements or plea transcripts, any presentencing reports adopted by the sentencing judges, and any findings made by the sentencing judges. See > Spell, 44 F.3d at 939.

[Editorial comment by Mr. Kent: This is incorrect.  That is, the court should not be permitted to look at the surrounding pleadings, etc. to determine whether it was a sale or only a purchase.  The law is clear that for purposes of determining whether an underlying conviction meets the definition of a career offender predicate or not the court is limited to looking to the language of the charging document only.  In this case under Florida law, one must look solely to the state attorney's "information," the wquivalent to the federal indictment.  Typically a Florida information charging this offense would simply have tracked the statutory language.  Hopefully this mistake will be clarified on petition for rehearing.]

Hernandez also contends that the district court erred in ordering him deported as a condition of his supervised release, and asks this court to vacate his sentence. It is not a matter of dispute between the parties that the sentence imposed by the district court violates the rule of law articulated in > Romeo, which states that under the new immigration laws, district courts no longer have the independent, legal authority to order deportation. > 122 F.3d at 943-44. On resentencing, the district court will doubtlessly take > Romeo into account.
 In accord with our established precedent, since we must vacate the sentence based upon status as a "career offender" and that portion of the sentence dealing with deportation, we vacate the entire sentence and remand for resentencing. "Multiple count convictions present the trial judge with the need for a sentencing scheme which takes into consideration the total offense characteristics of a defendant's behavior. When that scheme is disrupted because it has incorporated an illegal sentence, it is appropriate that the entire case be remanded for sentencing." > United States v. Lail, 814 F.2d 1529, 1530 (11th Cir.1987), quoting, > United States v. Rosen, 764 F.2d 763, 767
III. CONCLUSION
For the foregoing reasons, the conviction of Hernandez is affirmed and his
sentence is vacated. The matter is remanded for resentencing.
Conviction AFFIRMED; Sentence VACATED and REMANDED for Resentencing

FN4. At the time of Hernandez's sentencing, > United States Sentencing Guideline S 4B1.1 provided:

A defendant is a career offender if (1) the defendant was at least eighteen years old at the time of the instant offense, (2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense, and (3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense.

FN5. At the time of sentencing, > United States Sentencing Guideline S 4B1.2 (2) provided:
The term "controlled substance offense" means an offense under a federal or state law prohibiting the manufacture, import, export, distribution, or dispensing of a controlled substance (or a counterfeit substance) or the possession of a controlled substance (or a counterfeit substance) with intent to manufacture, import, export, distribute, or dispense.

FN7. Appellant did not raise the > Romeo issue in his briefs to this court, but did raise the issue at oral argument.

FN8. For the issues relevant to this opinion, a nolo contendere plea is equivalent to a guilty plea.