PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 07-4105
SANTOS MATAMOROS-MODESTA, a/k/a
Jose Perez Balrino,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 07-4118
SANTOS MATAMOROS-MODESTA,
Defendant-Appellant.
Appeals from the United States District Court
for the Western District of North Carolina, at Charlotte.
Richard L. Voorhees, District Judge.
(5:05-cr-00226; 3:03-cr-00144)
Argued: February 1, 2008
Decided: April 10, 2008
Before MOTZ, KING, and GREGORY, Circuit Judges.
Vacated and remanded by published opinion. Judge King wrote the
opinion, in which Judge Motz and Judge Gregory joined.
2 UNITED STATES v. MATAMOROS-MODESTA
COUNSEL
ARGUED: Matthew R. Segal, FEDERAL DEFENDERS OF WEST-
ERN NORTH CAROLINA, INC., Asheville, North Carolina, for
Appellant. Amy Elizabeth Ray, OFFICE OF THE UNITED STATES
ATTORNEY, Asheville, North Carolina, for Appellee. ON BRIEF:
Raquel K. Wilson, FEDERAL DEFENDERS OF WESTERN
NORTH CAROLINA, INC., Asheville, North Carolina, for Appel-
lant. Gretchen C. F. Shappert, United States Attorney, Charlotte,
North Carolina, for Appellee.
OPINION
KING, Circuit Judge:
Santos Matamoros-Modesta appeals in No. 07-4105 from his
thirty-seven-month sentence for illegal reentry into the United States
after removal, in contravention of the Immigration and Nationality
Act (the "INA"), specifically 8 U.S.C. § 1326. Matamoros-Modesta
maintains that the district court erred — in the wake of the Supreme
Court’s decision in Lopez v. Gonzales, 127 S. Ct. 625 (2006) — by
enhancing his sentence for having previously been removed subse-
quent to an "aggravated felony" conviction. The Government has con-
ceded that Matamoros-Modesta is entitled to relief on this issue.
Because the parties’ shared position is a valid one, we vacate the ille-
gal reentry sentence and remand for resentencing.1
1
Matamoros-Modesta also noted appeals in No. 07-4105 from his con-
viction for illegal reentry, and in No. 07-4118 from a revocation of
supervised release and the resulting 366-day sentence. We do not con-
sider these matters herein, however, because Matamoros-Modesta aban-
doned his challenge to the illegal reentry conviction by renouncing it at
oral argument. See Synergistic Int’l, LLC v. Korman, 470 F.3d 162, 176
n.15 (4th Cir. 2006). And, he abandoned any appellate contentions
related to the supervised release revocation and resulting sentence by
failing to address them in his opening brief. See Edwards v. City of
Goldsboro, 178 F.3d 231, 241 n.6 (4th Cir. 1999) (citing Fed. R. App.
P. 28(a)(9)(A)).
UNITED STATES v. MATAMOROS-MODESTA 3
I.
On July 27, 2005, a grand jury in the Western District of North
Carolina charged Matamoros-Modesta in a single-count indictment
with the INA offense of illegal reentry. The indictment specified that
he was charged under 8 U.S.C. § 1326(a) and (b)(2).2 On March 7,
2006, Matamoros-Modesta pleaded guilty to the offense as charged,
without a written plea agreement. Thereafter, a presentence investiga-
tion report (the "PSR") was prepared for him. Applying the 2005 edi-
tion of the Sentencing Guidelines, the PSR assigned Matamoros-
Modesta a base offense level of 8. See USSG § 2L1.2(a). The PSR
then added an eight-level enhancement for having previously been
removed following "a conviction for an aggravated felony." Id.
§ 2L1.2(b)(1)(C) (the "aggravated felony enhancement"). The PSR
reflected two possible bases for the aggravated felony enhancement:
(1) a 1998 conviction in Texas for possession of cocaine, and (2) a
2
Subsection (a) of § 1326 provides, "[s]ubject to subsection (b)," that
any alien who—
(1) has been denied admission, excluded, deported, or
removed or has departed the United States while an order of
exclusion, deportation, or removal is outstanding, and there-
after
(2) enters, attempts to enter, or is at any time found in, the
United States, unless (A) prior to his reembarkation at a
place outside the United States or his application for admis-
sion from foreign contiguous territory, the Attorney General
has expressly consented to such alien’s reapplying for
admission; or (B) with respect to an alien previously denied
admission and removed, unless such alien shall establish that
he was not required to obtain such advance consent under
this chapter or any prior Act,
shall be fined under Title 18, or imprisoned not more than 2
years, or both.
Subsection (b), in turn, outlines enhanced criminal penalties for certain
offenders. Under subsection (b)(2), "in the case of any alien . . . whose
removal was subsequent to a conviction for commission of an aggravated
felony, such alien shall be fined under [Title 18], imprisoned not more
than 20 years, or both."
4 UNITED STATES v. MATAMOROS-MODESTA
prior federal conviction in 2004 for illegal reentry.3 Finally, the PSR
awarded a three-level adjustment for acceptance of responsibility, id.
§ 3E1.1, resulting in a total offense level of 13. With a criminal his-
tory category of V (based on a total of twelve criminal history points),
the resulting advisory Guidelines range was thirty to thirty-seven
months of imprisonment. The PSR identified the maximum statutory
prison term as twenty years, citing subsection (b)(2) of 8 U.S.C.
§ 1326.
On December 18, 2006, the district court conducted a sentencing
hearing for Matamoros-Modesta. At the start of the hearing, the court
reaffirmed its acceptance of Matamoros-Modesta’s guilty plea. Next,
the court adopted the PSR, without objection from the parties (or any
mention of the Supreme Court’s decision in Lopez v. Gonzales, which
had been issued two weeks earlier, on December 5, 2006). After con-
sidering the Sentencing Guidelines, as well as the factors set forth in
18 U.S.C. § 3553(a), the district court imposed a sentence of thirty-
seven months, at the high end of the Guidelines range. The court’s
Judgment reflects that Matamoros-Modesta was deemed guilty of and
sentenced for illegal reentry, in contravention of 8 U.S.C. § 1326(a)
and (b)(2). Matamoros-Modesta timely noted this appeal, which he
has since limited to a Lopez-based challenge to his sentence.4
3
The PSR also revealed that Matamoros-Modesta, while a juvenile,
had been removed from the United States on November 19, 1997, after
entering the country illegally. Matamoros-Modesta illegally reentered the
United States and, after his 1998 conviction in Texas for cocaine posses-
sion, was removed on June 11, 1999. Following another illegal reentry
into the United States, he was convicted of a number of offenses in South
Carolina and North Carolina between 2000 and 2003. He also received
his prior federal conviction in 2004 for illegal reentry. On March 17,
2005, Matamoros-Modesta was again removed. He illegally returned to
the United States sometime between his last removal and his July 14,
2005 arrest on additional North Carolina charges of which he was subse-
quently convicted.
4
Notably, although the indictment charged the INA offense of illegal
reentry pursuant to 8 U.S.C. § 1326(a) and (b)(2), and the district court’s
Judgment reflects conviction under those same provisions, the Supreme
Court has recognized that the substantive crime of illegal reentry is
defined in subsection (a), and not subsection (b)(2). See Almendarez-
Torres v. United States, 523 U.S. 224, 231-32 (1998). As the Court
explained, subsection (b)(2) "is a penalty provision, which simply autho-
rizes a court to increase the sentence for a recidivist. It does not define
a separate crime." Id. at 226.
UNITED STATES v. MATAMOROS-MODESTA 5
II.
As a result of the Supreme Court’s decision in United States v.
Booker, 543 U.S. 220 (2005), "the Guidelines are now advisory, and
appellate review of sentencing decisions is limited to determining
whether they are ‘reasonable.’" Gall v. United States, 128 S. Ct. 586,
594 (2007). And, as the Court has instructed, "courts of appeals must
review all sentences" — including those (like Matamoros-Modesta’s)
imposed within the advisory Sentencing Guidelines range — "under
a deferential abuse-of-discretion standard." Id. at 591. At the first step
of this review, as relevant here, we must "ensure that the district court
committed no significant procedural error, such as failing to calculate
(or improperly calculating) the Guidelines range." Id. at 597.
Matamoros-Modesta contends and the Government concedes that, in
light of Lopez v. Gonzales, 127 S. Ct. 625 (2006), the district court
committed significant procedural error in sentencing Matamoros-
Modesta on his INA illegal reentry offense, by improperly applying
the aggravated felony enhancement under section 2L1.2(b)(1)(C) of
the Guidelines. In reviewing this issue, we first examine the Lopez
decision. We then explain why Lopez indeed entitles Matamoros-
Modesta to relief.5
A.
In Lopez v. Gonzales, the Supreme Court assessed "whether con-
duct made a felony under state law but a misdemeanor under the Con-
5
The parties have agreed that the district court committed plain error
in sentencing Matamoros-Modesta. See Fed. R. Crim. P. 52(b) (providing
that "[a] plain error that affects substantial rights may be considered even
though it was not brought to the court’s attention"); United States v.
Olano, 507 U.S. 725, 732 (1993) (explaining that party seeking to over-
turn ruling on plain error review bears burden of demonstrating (1) error
occurred, (2) it was plain, and (3) it affected his substantial rights, and
that appellate court yet wields discretion to correct plain error). Accord-
ingly, we do not endeavor to assess herein the proper post-Booker role
of plain error review in sentencing appeals. Cf. United States v. Vonner,
No. 05-5295, ___ F.3d ___ (6th Cir. Feb. 7, 2008) (en banc) (applying
plain error test, over vigorous dissents, to contention that sentencing
court committed procedural error by failing to adequately explain its
rejection of defendant’s arguments for leniency).
6 UNITED STATES v. MATAMOROS-MODESTA
trolled Substances Act is a ‘felony punishable under the Controlled
Substances Act’" — and, thus, whether such a state offense is an "ag-
gravated felony" for purposes of the INA. See 127 S. Ct. at 627-28.
Significantly, the Court concluded that "it is not." Id. at 627.6
As the Court recognized, the INA makes an alien "guilty of an
aggravated felony if he has been convicted of ‘illicit trafficking in a
controlled substance . . . including,’ but not limited to, ‘a drug traf-
ficking crime (as defined in section 924(c) of title 18).’" Lopez, 127
S. Ct. at 629 (quoting 8 U.S.C. § 1101(a)(43)(B)) (alteration in origi-
nal). For its part, 18 U.S.C. § 924(c) "defines ‘drug trafficking
crime,’" in relevant part, "as ‘any felony punishable under the Con-
trolled Substances Act.’" Id. (quoting 18 U.S.C. § 924(c)(2)). After a
sweeping examination of this language, the Court held "that a state
offense constitutes a ‘felony punishable under the Controlled Sub-
stances Act’ only if it proscribes conduct punishable as a felony under
that federal law," id. at 633 — rejecting the proposition that the state
offense, if categorized by the state as a felony, need only be "punish-
able" under the Controlled Substances Act, as a felony or misdemea-
nor, id. at 631.7
The petitioner in Lopez was contesting the Government’s determi-
nation that he was deportable, pursuant to the INA (specifically, 8
U.S.C. § 1227(a)(2)(A)(iii)), as an "alien who [was] convicted of an
aggravated felony at any time after admission." See 127 S. Ct. at 628
(explaining that aggravated felony determination disqualified Lopez,
under 8 U.S.C. § 1229b(a)(3), from discretionary cancellation of
removal). The aggravated felony determination was premised on
Lopez’s state conviction in South Dakota for aiding and abetting
6
The INA defines "aggravated felony" in 8 U.S.C. § 1101(a)(43),
which includes subparagraphs (A) through (U). The Lopez Court focused
on subparagraph (B), which renders "illicit trafficking in a controlled
substance" an aggravated felony.
7
In so holding, the Supreme Court overruled our contrary decision in
United States v. Wilson, 316 F.3d 506, 511-14 (4th Cir. 2003), to the
extent we concluded therein that a state felony drug possession offense,
punishable as only a federal misdemeanor, constitutes a "felony punish-
able under the Controlled Substances Act" and, thus, an aggravated fel-
ony under the INA. See Lopez, 127 S. Ct. at 629 n.3.
UNITED STATES v. MATAMOROS-MODESTA 7
another person’s possession of cocaine, see id., "which state law
treated as the equivalent of possessing the drug," id. at 629. The
Supreme Court observed that, although Lopez’s offense was a felony
under South Dakota law, "[m]ere possession is not . . . a felony under
the federal" Controlled Substances Act. Id. (citing 21 U.S.C. § 844(a)).8
Accordingly, based on its holding "that a state offense constitutes a
‘felony punishable under the Controlled Substances Act’ only if it
proscribes conduct punishable as a felony under that federal law," the
Court reversed the aggravated felony determination. Id. at 633.9
B.
Matamoros-Modesta challenges the district court’s imposition of
the aggravated felony enhancement under section 2L1.2(b)(1)(C) of
the Sentencing Guidelines, with respect to his sentence for illegal
reentry in contravention of the INA, 8 U.S.C. § 1326. By contrast, the
petitioner in Lopez contested an aggravated felony determination that
disqualified him under the INA, 8 U.S.C. § 1229b(a)(3), from discre-
tionary cancellation of removal. The Lopez holding is clearly perti-
nent, however, to Matamoros-Modesta’s sentencing contention. That
is, both 8 U.S.C. §§ 1326(b)(2) and 1229b(a)(3) rely on the INA defi-
nition of aggravated felony found in 8 U.S.C. § 1101(a)(43), subpara-
8
The Lopez Court acknowledged that the general proposition that the
Controlled Substances Act punishes drug possession offenses as misde-
meanors is subject to a few exceptions for, e.g., repeat offenders, persons
who possess more than five grams of cocaine base, and persons who pos-
sess flunitrazepam. See 127 S. Ct. at 630 n.4 (citing 21 U.S.C. § 844(a)).
Moreover, as the Court observed, "possessing more than what one person
would have for himself will support conviction for the federal felony of
possession with intent to distribute." Id. at 629 (citing 21 U.S.C. § 841).
9
The Lopez Court also allowed that a state felony would satisfy the
INA definition of aggravated felony found in 8 U.S.C. § 1101(a)(43)(B)
if it "actually fell within the general term ‘illicit trafficking,’ . . . regard-
less of the existence of a federal felony counterpart." 127 S. Ct. at 631-
32; see also id. at 630 (observing that "ordinarily ‘trafficking’ means
some sort of commercial dealing"). The Court concluded that Lopez’s
offense conduct did not amount to "illicit trafficking," in that
"[c]ommerce . . . was no part of Lopez’s South Dakota offense of helping
someone else to possess, and certainly it is no element of simple posses-
sion, with which the State equates that crime." Id. at 630.
8 UNITED STATES v. MATAMOROS-MODESTA
graph (B) of which was interpreted by the Lopez Court. Moreover, as
the Lopez Court acknowledged, the Sentencing Guidelines have
adopted that same INA definition of aggravated felony for purposes
of imposing the aggravated felony enhancement. See 127 S. Ct. at 628
(citing USSG § 2L1.2 cmt. n.3 (2005)). Indeed, several of our sister
courts of appeals have applied Lopez in aggravated felony enhance-
ment appeals. See United States v. Figueroa-Ocampo, 494 F.3d 1211,
1216 (9th Cir. 2007) (observing that "it is beyond dispute that Lopez
applies in both criminal sentencing and immigration matters"); United
States v. Estrada-Mendoza, 475 F.3d 258, 261 (5th Cir. 2007) (con-
cluding that "Lopez ineluctably applies with equal force to immigra-
tion and criminal cases"); see also United States v. Pacheco-Diaz, 506
F.3d 545, 548 (7th Cir. 2007); United States v. Martinez-Macias, 472
F.3d 1216, 1218 (10th Cir. 2007).
Under Lopez, the district court’s determination that Matamoros-
Modesta had been removed subsequent to an aggravated felony con-
viction constitutes error. As noted above, Matamoros-Modesta’s PSR
reflected two possible bases for the aggravated felony enhancement,
i.e., his 1998 conviction in Texas for possession of cocaine, and his
prior federal conviction in 2004 for illegal reentry. The Texas drug
possession offense, though deemed a felony under state law, was not
punishable as a felony under the federal Controlled Substances Act
and, thus, cannot satisfy the INA definition of an aggravated felony
found in 8 U.S.C. § 1101(a)(43)(B) and interpreted in Lopez. See
Lopez, 127 S. Ct. at 630 n.4 (recognizing that Texas is among
"[s]everal States [that] punish possession as a felony"); see also
Estrada-Mendoza, 475 F.3d at 259-61 (invoking Lopez to vacate ille-
gal reentry sentence where aggravated felony enhancement imposed
on basis of prior Texas felony conviction for drug possession). More-
over — because the Texas drug possession offense does not constitute
an aggravated felony, and because Matamoros-Modesta was not oth-
erwise convicted of any INA-defined aggravated felony before his
prior illegal reentry offense — the prior illegal reentry offense also
does not qualify as an aggravated felony under the INA definition
found in § 1108(a)(43)(O) (deeming prior illegal reentry offense to be
aggravated felony if committed after removal on basis of conviction
for another § 1108(a)(43) aggravated felony offense). Accordingly,
the district court committed significant procedural error by imposing
UNITED STATES v. MATAMOROS-MODESTA 9
the aggravated felony enhancement on Matamoros-Modesta, and he
is entitled to resentencing.10
III.
Pursuant to the foregoing, we vacate Matamoros-Modesta’s illegal
reentry sentence, and remand for resentencing.
VACATED AND REMANDED
10
Matamoros-Modesta has acknowledged that he is subject to a four-
level enhancement under section 2L1.2(b)(1)(D) of the Sentencing
Guidelines, for having previously been removed following "a conviction
for any other felony." Assuming all other Guidelines calculations stand
(except a necessary change from a three- to a two-level adjustment for
acceptance of responsibility, see USSG § 3E1.1), Matamoros-Modesta
would have an offense level of 10, a criminal history category of V, and
a resulting sentencing range of twenty-one to twenty-seven months. He
also suggests that he should be resentenced under subsection (b)(1) of 8
U.S.C. § 1326 (establishing maximum ten-year sentence for illegal reen-
try in case of alien whose removal was subsequent to conviction for fel-
ony other than aggravated felony), rather than subsection (b)(2)
(providing maximum twenty-year sentence where removal followed
aggravated felony conviction). We leave these issues for the district court
on remand.