United States v. Arrellin-Dominguez

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

___________________

No. 96-50308
Cons. w/ No. 96-50257

UNITED STATES OF AMERICA,
Plaintiff-Appellant,

versus

EDUARDO VILLA-MORENO, also known as
Javier Moreno,
Defendant-Appellee.

********************************

UNITED STATES OF AMERICA,
Plaintiff-Appellee
Cross-Appellant,

versus

JESUS ANTONIO ARRELLIN-DOMINGUEZ,
Defendant-Appellant
Cross-Appellee.
________________________________________________

Appeal from the United States District Court for the
Western District of Texas
(EP-95-CR-600 & EP-95-CR-434)
________________________________________________

July 16, 1997
Before EMILIO M. GARZA, PARKER and DENNIS, Circuit Judges.

PER CURIAM:*

Defendant-appellee Eduardo Villa-Moreno (Villa) and Defendant-

*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
appellant-cross-appellee Jesus Antonio Arrellin-Dominguez

(Arrellin) were each arrested by El Paso police officers on

separate occasions for unrelated offenses. Both Villa and Arrellin

were illegal aliens who had previously been deported to Mexico

after prior arrests and Texas convictions for burglary. Villa and

Arrellin pleaded guilty to indictments charging them with unlawful

reentry into the United States, contrary to 8 U.S.C. § 1326. The

United States sought enhanced penalties on the basis of the prior

state burglary convictions. Because Villa’s nine-year probated

state sentence was revoked following his guilty plea to the section

1326 offense and he was then resentenced by the state court to a

four-year confinement term, the district court determined that the

sixteen-level increase in his offense level was not authorized by

the United States Sentencing Guidelines. Similarly, the district

court refused to increase Arrellin’s offense level because after

his reentry Arrellin’s five-year probated state sentence was

revoked and reentered as a sentence of four years’ confinement.

Because both appeals concern the proper application of the same

section of the USSG, and upon a joint motion by the parties, we

have consolidated the cases for appellate disposition. For the

following reasons, we vacate the sentence and remand for

resentencing in each case.

Facts and Proceedings Below

I. United States v. Villa-Moreno

On December 3, 1995, El Paso police officers arrested Villa

2
for public intoxication. That same day, United States Border

Patrol (USBP) agents conducting a routine check at the El Paso

Detention Facility determined that Villa was a Mexican citizen who

was in the country illegally. Villa previously had been deported

on September 29, 1994, after a Texas burglary (Texas Penal Code §

30.02) conviction on September 14, 1992. Villa had reentered the

United States shortly after his deportation by wading across the

Rio Grande in November 1994. Villa had not received the Attorney

General’s consent to reapply for admission to the United States.

A federal grand jury returned an indictment charging Villa

with being an alien, previously arrested and deported, found in the

United States in violation of section 1326.1 The United States

1
Section 1326 provides as follows:

Ҥ 1326. Reentry of deported alien; criminal penalties
for reentry of certain deported aliens

(a) Subject to subsection (b) of this section, any alien
who——

(1) has been arrested and deported or excluded and
deported, and thereafter

(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 admission 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 excluded and deported,
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.

3
Attorney submitted a Notice of Penalty Enforcement alleging that,

upon conviction of the offense, the government intended to offer

proof of Villa’s prior Texas conviction for burglary, subjecting

him to potential imprisonment under section 1326(b)(2) for up to

twenty years. Thereafter, on December 28, 1995, Villa pleaded

guilty to the indictment.

On January 31, 1996, the 41st District Court of El Paso

County, Texas, revoked Villa’s probation for the September 1992

burglary conviction and imposed a four-year sentence of

confinement, replacing the nine-year probated sentence originally

assessed.

The Presentence Investigation Report (PSR), prepared by the

probation officer, recommended a base offense level of eight under

U.S.S.G. § 2L1.2(a), the appropriate sentencing guideline governing

section 1326, with a four-level upward adjustment under U.S.S.G. §

(b) Notwithstanding subsection (a) of this section, in
the case of any alien described in such subsection——

(1) whose deportation was subsequent to a conviction
for commission of three or more misdemeanors involving
drugs, crimes against the person, or both, or a felony
(other than an aggravated felony), such alien shall be
fined under Title 18, imprisoned not more than 10 years,
or both; or

(2) whose deportation was subsequent to a conviction
for commission of an aggravated felony, such alien shall
be fined under such Title, imprisoned not more than 20
years, or both.

For the purposes of this subsection, the term
‘deportation’ includes any agreement in which an alien
stipulates to deportation during a criminal trial under
either Federal or State law.”

4
2L1.2(b)(1)2 for Villa’s prior burglary conviction. The probation

officer recommended a downward adjustment of two levels for

“affirmative acceptance of personal responsibility” under U.S.S.G.

§ 3E1.1(a), resulting in a total offense level of 10. Villa’s

criminal history provided for total “criminal history points” of

thirteen, placing him in Criminal History Category VI. Under the

guidelines, the imprisonment range using the PSR’s offense level

determinations was 24-30 months.

The government objected to the PSR’s failure to recommend a

sixteen-level upward adjustment pursuant to U.S.S.G. § 2L1.2(b)(2).

The government argued that United States v. Vasquez-Balandran, 76

F.3d 648 (5th Cir. 1996), required the district court to consider

the full, nine-year sentence originally imposed to determine

whether the prior burglary conviction was an “aggravated felony,”

regardless of any subsequent change after Villa’s probation was

revoked. Using the government’s calculations, Villa’s offense

called for a base offense level of eight, with an upward adjustment

of sixteen, and, provided the district court deemed it appropriate,

a three-level downward adjustment for acceptance of

responsibility——providing a total offense level of twenty-one, a

2
U.S.S.G. § 2L1.2(b) provides:
(b) Specific Offense Characteristics
If more than one applies, use the greater:
(1) If the defendant previously was deported after
a conviction for a felony, other than a felony involving
violation of the immigration laws, increase by 4 levels.
(2) If the defendant previously was deported after
a conviction for an aggravated felony, increase by 16
levels.

5
Criminal History Category of VI, and a guidelines imprisonment

range of 77-96 months.

Alternatively, the government urged that, pursuant to U.S.S.G.

§ 4A1.3, an upward departure was appropriate because Villa’s

extensive criminal record was not reflected adequately by his

Criminal History Category.

The district court overruled the government’s objection,

denied the request for an upward departure, and sentenced Villa to

imprisonment for thirty months, nonreporting supervised release for

three years, and a special assessment of fifty dollars.

The government filed a timely notice of appeal.

II. United States v. Arrellin-Dominguez

On September 11, 1995, El Paso police officers arrested

Arrellin for loitering and turned him over to USBP agents.

Arrellin admitted to being in the country illegally. Arrellin

previously had been deported involuntarily on October 13, 1993, on

November 18, 1993, after a December 1992 Texas burglary (Texas

Penal Code § 30.02) conviction, and on April 2, 1995.3 Arrellin

had reentered the United States five months after his last

deportation by wading across the Rio Grande on September 5, 1995.

Arrellin had not received the Attorney General’s consent to reapply

for admission to the United States.

3
On 193 other occasions, Arrellin had been returned to Mexico
voluntarily.

6
 A federal grand jury returned an indictment charging Arrellin

with being an alien, previously arrested and deported, found in the

United States in violation of section 1326. The United States

Attorney submitted a Notice of Penalty Enhancement similar in all

respects to the one submitted for Villa. Thereafter, on January

26, 1996, Arrellin pleaded guilty to the indictment.

On March 15, 1996, the 41st District Court of El Paso County,

Texas, revoked Arrellin’s probation for the December 1992 burglary

conviction nunc pro tunc and imposed a four-year sentence of

confinement, replacing the five-year probated sentence originally

assessed. The effective date of the nunc pro tunc entry was

January 26, 1996.4

The PSR recommended a base offense level of eight under

U.S.S.G. § 2L1.2(a) with a four-level upward adjustment for

Arrellin’s prior burglary conviction. The PSR also recommended a

two-level downward adjustment for acceptance of personal

responsibility, resulting in a total offense level of ten.

Arrellin’s Criminal History Score was fourteen, which was increased

by three because his offense was committed while on supervised

release and less than two years following his release from

confinement on April 2, 1995. Accordingly, under the PSR’s

recommendations, Criminal History Category VI applied, providing an

4
On January 26, 1996, the 41st District Court of El Paso County
had revoked Arrellin’s probation for the December 1992 burglary and
had imposed a five-year sentence of confinement replacing the five-
year confinement term originally assessed and probated for five
years.

7
imprisonment range of 24-30 months.

The government objected to Arrellin’s PSR on precisely the

same grounds that it asserted in Villa’s case——namely that Vasquez-

Balandran required a sixteen-level upward adjustment or,

alternatively, an upward departure was warranted in light of

Arrellin’s extensive criminal history.5

The district court overruled the government’s objection

regarding the sixteen-level upward adjustment, but found that a

four-level upward departure was appropriate under U.S.S.G. § 4A1.3.

Using a base offense level of fourteen with a Criminal History

Category of six, the district court sentenced Arrellin to

imprisonment for forty-six months, nonreporting supervised release

for three years, and a special assessment of fifty dollars.

Arrellin and the United States each filed timely notices of

appeal.

Discussion

This appeal presents the issue of whether a prior state crime

of violence conviction, for which a probated sentence of

imprisonment for five years or more was assessed but which, on

revocation of probation following illegal reentry, was subsequently

reimposed as a four-year sentence of confinement, requires a

sixteen-level upward adjustment under U.S.S.G. § 2L1.2(b)(2). The

5
At the age of twenty, Arrellin, using at least eleven aliases,
already had accumulated a remarkable sixteen documented arrests,
three deportations, and one hundred ninety-three voluntary
“returns.”

8
district court held that U.S.S.G. § 2L1.2(b)(2) applied only to the

state sentence existing at the time of federal sentencing rather

than as originally assessed by the state court. Whether the

sentencing guidelines apply to a prior conviction is a question of

law, which we review de novo. United States v. Ramos-Garcia, 95

F.3d 369, 371 (5th Cir. 1996); United States v. Quinonez-Terrazas,

86 F.3d 382, 382 (5th Cir. 1996); United States v. Vasquez-

Balandran, 76 F.3d 648, 649 (5th Cir. 1996).

The material facts are not in dispute and the parties disagree

solely as to whether Villa’s and Arrellin’s prior state sentences

meet the “term of imprisonment” requirement of U.S.S.G. § 2L1.2

n.7. Both Villa and Arrellin pleaded guilty to violating section

1326. The appropriate sentencing guideline for violations of that

statute is U.S.S.G. § 2L1.2. Under U.S.S.G. § 2L1.2(b)(2), if a

defendant convicted of unlawful entry into the United States

previously was deported after a conviction for an “aggravated

felony,” a sixteen-level upward adjustment in the base offense

level is required. An “aggravated felony” is defined by

Application Note 7 to include “any crime of violence (as defined in

18 U.S.C. § 16, not including a purely political offense) for which

the term of imprisonment imposed (regardless of any suspension of

such imprisonment) is at least five years.” U.S.S.G. § 2L1.2 n.7.

As neither Villa nor Arrellin contend that their prior Texas state

convictions for burglary under Texas Penal Code § 30.02 (in

September 1992 and December 1992, respectively) are not “crimes of

9
violence,”6 their contention that section 2L1.2(b)(2) is inapposite

turns on the construction of “imposed” as used in Application Note

7.

Villa, Arrellin, and the government dispute the significance

of our recent decision in United States v. Vasquez-Balandran, 76

F.3d 648. In Vasquez-Balandran, this Court addressed the issue of

whether a Texas state sentence for a term of ten years, the

imposition of which was probated, was “imposed” as contemplated by

U.S.S.G. § 2L1.2(b)(2). Like Villa and Arrellin, Vasquez did not

dispute that he had a prior conviction for a crime of violence, but

argued that, because he was granted probation pursuant to Texas

law, his ten-year sentence for robbery was never “imposed” as

required by the sentencing guidelines. This Court, acknowledging

that Texas law at the time of Vasquez’s state sentencing did in

fact distinguish between “assessing” and “imposing” a sentence in

the probation context, nevertheless determined that “the

distinction made by the Texas courts [was] not controlling” because

federal rather than state law governs the application of the

federal sentencing guidelines. Vasquez-Balandran, 76 F.3d at 650

(citing United States v. Morales, 854 F.2d 65, 68 (5th Cir. 1988)).

6
8 U.S.C. § 1101(a)(43)(F) provides that a an “aggravated
felony” is a crime of violence as defined in 18 U.S.C. § 16. We
have held consistently that a Texas conviction for burglary under
Texas Penal Code § 30.02 (burglary of a habitation or building)
constitutes a conviction for a crime of violence. See United
States v. Guadardo, 40 F.3d 102, 103 (5th Cir. 1994); United States
v. Cruz, 882 F.2d 922 (5th Cir. 1989); United States v. Flores, 875
F.2d 1110 (5th Cir. 1989).

10
Furthermore, we observed that “there is no indication in the

relevant guideline or statutes that the Sentencing Commission or

Congress intended state law to determine whether the term of

imprisonment was imposed.” Id. (emphasis in original)(citing

Wilson v. INS, 43 F.3d 211, 214-15 (5th Cir.), cert. denied, 116

S.Ct. 59 (1995)).

Finding that federal recognition of the distinction Texas

makes between assessment of a sentence and its imposition in the

probation context would reach an unintended result under the

federal sentencing guidelines, we stated:

“Under those circumstances, no Texas defendant who
received a suspended sentence . . . would be eligible for
this enhancement because the suspended sentence would not
be deemed “imposed” until probation was revoked. It does
not appear that the Sentencing Commission or Congress
intended such a result. . . . To hold otherwise would
limit the applicability of the enhancement under §
2L1.2(b)(2) to those defendants who actually serve their
sentences.” Id. at 650-51 (concluding that, “although
the Texas legislature labeled it ‘assessing,’ for our
purposes, the [state sentencing] court was imposing a
term of imprisonment, which it then suspended”).

The Vasquez-Balandran opinion’s conclusion that the sentencing

guidelines did not support the distinction urged by Vasquez was

predicated on the language in the application note (and identical

statutory definition of aggravated felony), which provides that the

enhancement applied “regardless of any suspension of such

imprisonment.” Id. at 650.7

7
We observe that the relevant wording of Villa’s and Arrellin’s
original sentences is identical to that of the defendant in

11
 At both Villa’s and Arrellin’s sentencing, the government

Vasquez-Balandran.

Arrellin’s December 11, 1992, criminal judgment states in
relevant part:

“It is therefore considered and adjudged by the
Court that said Defendant is guilty of the offense of
Burglary . . ., and that he be punished by confinement in
the Texas Department of Corrections for five (5) years
and . . . [no fine or costs].

The imposition of the above sentence is suspended
and the Defendant is placed on adult probation under the
terms and conditions set out in Exhibit ‘A’ hereto
attached.” [The attached exhibit specifies, inter alia,
that the probation is “for the period of five (5)
years”].

Villa’s September 14, 1992, criminal judgment states in
relevant part:

“It is therefore considered and adjudged by the
Court that said Defendant is guilty of the offense of
Burglary . . ., and that he be punished by confinement in
the Texas Department of Corrections for nine (9) years
and . . . [no fine or costs].

The imposition of the above sentence is suspended
and the Defendant is placed on adult probation under the
terms and conditions set out in Exhibit ‘A’ hereto
attached.” [The record before us does not contain a copy
of the Exhibit A].

In Vasquez-Balandran, the original state criminal judgment
provided as follows:

“It is therefore considered and adjudged by the Court
that the said Defendant is guilty of the offense of
Robbery, Count 2 paragraph ‘B’ as confessed by him in
said plea of guilty herein made, and that he be punished
by confinement in the Texas Department of Criminal
Justice-Institute [sic] Division for ten (10) years and
a fine of $0 . . . The imposition of the above sentence
(and fine) is suspended and the Defendant is placed on
adult probation under the terms and conditions set out in
Exhibit ‘A’ hereto attached.” Id. at 649 n.1 (emphasis
supplied by Vasquez-Balandran).

12
objected to their respective PSR’s failure to recommend the

sixteen-level upward adjustment in the base offense level on the

grounds that, after Vasquez-Balandran, the relevant state sentence

for federal sentence enhancement under U.S.S.G. § 2L1.2(b)(2) was

the original sentence set by the Texas state court. Under the

government’s position, the five-year term of imprisonment required

for aggravated felony enhancement under U.S.S.G. § 2L1.2(b)(2) was

selected as a benchmark for establishing the seriousness of the

predicate felony. Accordingly, the government contends that

whether the convicted felon ever served a single day of his

sentence behind bars or subsequently was able to obtain a reduced

sentence from the state court is immaterial to a proper

determination of his federal sentence enhancement for violation of

section 1326.

Villa and Arrellin make identical arguments in support of the

district court’s refusal to make the sixteen-level upward

adjustment. First, they argue that the “plain language” of

U.S.S.G. § 2L1.2(b)(2) n.7 (requiring that the prerequisite five-

year term of imprisonment be imposed) is facially inapplicable in

light of their subsequent, reduced four-year sentences. Second,

they contend that Vasquez-Balandran is distinguishable, and

therefore not controlling, because “no specific term of

imprisonment had been imposed on the [Vasquez-Balandran] defendant;

instead, a sentence was assessed, suspended and the defendant was

placed on probation.” Finally, they argue that Vasquez-Balandran

13
was wrongly decided because it both conflicts with various

statutory construction principles and the federal sentencing

guidelines’ goals of uniformity and fairness.

Villa’s and Arrellin’s “plain language” argument assumes away

the issue before the court. They argue not so much for a plain-

language construction of the federal sentencing guideline, but for

this Court to give federal effect to the state’s choice of

sentencing jargon. If, in fact, the only sentences “imposed” by

the Texas state courts were the four-year sentences imposed after

Villa’s and Arrellin’s arrests for unlawful entry and the

subsequent revocation of their probation, then U.S.S.G. §

2L1.2(b)(2) would indeed be facially inapplicable. We are,

however, unable to indulge this assumption in light of Vasquez-

Balandran’s guidance that federal, not Texas, law determines

whether a sentence has been “imposed.” On this point Vasquez-

Balandran was unequivocal: Whatever the niceties of Texas

sentencing nomenclature, for the purposes of U.S.S.G. §

2L1.2(b)(2)’s enhancement provision, “there is no meaningful

distinction between a Texas court’s ‘assessing’ a term of

imprisonment and ‘imposing’ a term of imprisonment.” Vasquez-

Balandran, 76 F.3d at 650-51.

The decision in Vasquez-Balandran to refuse the proffered

distinction between “assessed” and “imposed” was not, as Arrellin

asserts, “decided in a vacuum.” To hold that every state, by

virtue of its unquestioned authority to develop comprehensive

14
sentencing schemes, can unilaterally affect the mechanics of the

federal sentencing guidelines by its choice of nomenclature would

defeat the very goal of uniformity in sentencing that the United

States Sentencing Commission was formed to accomplish.

This concern accounts for the “general assumption that ‘in the

absence of a plain indication to the contrary, . . . Congress when

it enacts a statute is not making the application of the federal

act dependent on state law.’” Mississippi Band of Choctaw Indians

v. Holyfield, 109 S.Ct. 1597, 1605-06 (1989) (noting that “federal

statutes are generally intended to have uniform nationwide

application”); see also Taylor v. United States, 110 S.Ct. 2143,

2154 (1990) (stating that, for the purposes of the federal firearm

statute, the meaning of “burglary” should not depend on “whether

the State of his prior conviction happened to call that conduct

‘burglary’”); Dickerson v. New Banner Inst., 103 S.Ct. 986, 991

(1983) (“Whether one has been ‘convicted’ . . . is necessarily

. . . a question of federal, not state, law, despite the fact that

the predicate offense and its punishment are defined by the law of

the State.”); United States v. Turley, 77 S.Ct. 397, 399 (1957)

(“[I]n the absence of a plain indication of an intent to

incorporate diverse state laws into a federal criminal statute, the

meaning of the federal statute should not be dependent on state

law.”). See also United States v. Chambers, 922 F.2d 228, 235 (5th

Cir. 1991) (“whether a state indictment that is defective in some

particular may nevertheless be an indictment for purposes of [18

15
U.S.C.] section 922 (n) is ultimately a question of federal law.”).

The application of the federal sentencing guidelines is no less a

matter of federal, rather than state, concern. See Ramos-Garcia,

95 F.3d at 371 (“[F]ederal law, rather than state law, controls the

interpretation of U.S.S.G. § 2L1.2.”); United States v. Cordova-

Beraud, 90 F.3d 215, 219 (7th Cir. 1996) (same); Vasquez-Balandran,

76 F.3d at 650; United States v. Cuevas, 75 F.3d 778, 780 (1st Cir.

1996) (same); United States v. Ortiz-Gutierrez, 36 F.3d 80, 82 (9th

Cir. 1994) (same). Accordingly, although a state may use different

terms to describe, reduce, or expunge the imposition of a sentence,

“state law does not alter the historical fact of the conviction”

nor does it change the character of the sentence imposed as of the

time of the illegal reentry. Dickerson, 103 S.Ct. at 993; see also

Tuten v. United States, 103 S.Ct. 1412, 1415 n.9 (1983) (“Of

course, federal legislation may impose disabilities even on persons

whose convictions have been expunged.”)

We similarly find no merit in Villa’s and Arrellin’s argument

that Vasquez-Balandran is not controlling because, unlike the

appellant in that case, each had a definite sentence imposed after

his probation was revoked. Aside from the fact that, again, this

argument rests on our acceptance of the Texas sentencing

nomenclature as binding on the federal courts, we see no reason why

Villa’s and Arrellin’s subsequent resentencing has any relevance to

a proper determination of section 2L1.2(b)(2)’s enhancement

provision. The dispositive question is whether, at the time the

16
deported felon previously convicted of a crime of violence

reentered the United States illegally, he was subject to an

“imposed” sentence for that crime of five or more years’

imprisonment. See Chambers at 231-234 (dismissal of state

indictment on which 18 U.S.C. § 922(n) prosecution predicated prior

to federal sentencing does not warrant grant of new trial); United

States v. Brown, 484 F.2d 418, 424, cert. denied, 94 S.Ct. 1490

(1974) (“[e]ven assuming arguendo that the underlying indictment is

later found invalid, the crime under [18 U.S.C.] § 902(e) is

complete when a firearm is carried in interstate commerce by a

person then under indictment”). The argument that Vasquez-

Balandran is distinguishable because there “no specific term of

imprisonment had been imposed” is without merit: the term of

imprisonment there——ten years, suspended——was sufficiently “imposed”

for purposes of section 2L1.2(b)(2). The same necessarily follows

here.

Both Villa and Arrellin were convicted of burglary; both were

sentenced to terms of imprisonment in excess of five years which

were probated at sentencing; both were deported as a result of

criminal activity within the United States; and both thereafter

unlawfully reentered the United States carrying the baggage of

their prior criminal convictions and sentences of five years or

more. Their argument that reductions in their terms of

imprisonment subsequent to their reentry somehow render their prior

sentences insufficient for enhancement purposes misses the point.

17
It does not matter that an illegal alien’s prior sentence was

“indeterminate” as opposed to “definite,” see Quinonez-Terrazas, 86

F.3d at 382, that an illegal alien’s term of imprisonment was

“assessed” rather than “imposed” under Texas law, see Vasquez-

Balandran, 76 F.3d 648, or that an illegal alien served only a

portion as opposed to the complete term of the sentence imposed,

see Cordova-Beraud, 90 F.3d at 219. Rather, without regard to

technical sentencing-jargon, section 2L1.2(b)(2) requires a federal

court to determine whether, at the time of the unlawful reentry,

the defendant was, and had been prior to his deportation, under a

sentence for a term of imprisonment of at least five years, whether

denominated under state law as assessed, imposed, probated,

suspended, or any conceivable synonym for what is commonly

considered “imposed.” Indisputably, Vasquez-Balandran mandates the

holding that, for purposes of section 2L1.2(b)(2), Villa and

Arrellin, when they were deported and when they illegally reentered

the United States, were each persons who stood convicted of a

felony crime of violence for which the sentence imposed was five

years or more confinement, whether or not suspended.8

Nor do we believe that applying the rule announced in Vasquez-

Balandran results in a distortion of the Sentencing Commission’s

8
We are not presented with, and we do not address, the question
of whether one who has received a qualifying five-year or more
probated state sentence, subsequently had probation revoked, and
received a new imprisonment term of less than five years, prior to
a later deportation or unlawful reentry, is subject to the
“aggravated felony” enhancement of U.S.S.G. § 2L1.2(b)(2).

18
purpose. To the contrary, it is Villa’s and Arrellin’s

construction that would result in incongruous results. Under their

view, an illegal alien who successfully completes his probation

period would come within the terms of section 2L1.2(b)(2)’s

enhancement provision, but one who——like Villa and

Arrellin——violated the terms of his probation by committing yet

another offense would have the opportunity to seek a reduction of

his term of imprisonment at his probation revocation hearing in

order to excuse application of the enhancement provision.9 Surely

that was not the goal of the Commission when it promulgated

U.S.S.G. § 2L1.2(b)(2). Likewise, Villa and Arrellin do not

explain how their approach could effectively operate in instances

where the state probation is revoked, and a less than five-year

sentence is imposed, after the federal section 1326 sentencing had

become final on appeal or by failure to timely appeal.

Conclusion

For the foregoing reasons, we VACATE the sentences imposed by

the district court and REMAND for redetermination of proper

sentences for Villa and Arrellin using U.S.S.G. § 2L1.2(b)(2)’s

sixteen-level upward adjustment for the base offense level of

9
Villa and Arrellin argue, without support, that Texas’s
sentencing scheme unfairly disadvantages Texas illegal aliens who
have violated the terms of their probation because other
jurisdictions do not require an assessment of punishment at the
time probation is awarded. We do not find their argument
persuasive.

19
each.10

Sentences VACATED; causes REMANDED for Resentencing.

DENNIS, Circuit Judge, dissenting.

I respectfully dissent. The result reached by the majority

opinion is not accordant with the Sentencing Guidelines or required

by precedent.

Section 2L1.2 of the Sentencing Guidelines provides for an

increase of 16 levels for an illegal reentry conviction if the

alien was convicted of an aggravated felony prior to the

deportation. Under the version of Section 2L1.2 of the sentencing

guidelines pertinent to this case, an aggravated felony includes a

crime of violence “for which the term of imprisonment imposed

(regardless of any suspension of such imprisonment) is at least 5

years.” Thus, the sentencing commission clearly intended for

enhancement of the federal sentence to be governed by the length of

the state sentence, evidently because the number of years meted out

is indicative of the sentencing judge’s estimate of the magnitude

and severity of the crime. Accordingly, in a case in which the

state sentencing judge reduces or increases the state sentence nunc

pro tunc for any valid reason, e.g., because of a mistake in the

initial sentence or the availability of additional or more reliable

10
Our disposition of the issues relating to section 2L1.2(b)(2)
and consequent remand renders it unnecessary to consider Arrellin’s
complaint on appeal respecting upward departure.

20
sentencing information, I believe the sentencing commission

intended for the sentence actually imposed, not the superseded,

non-existent sentence, to govern the enhancement of the federal

sentence. There is no indication that the commission intended for

the federal sentence to be based on a retroactively superseded

state sentence that may have been affected by mistake, lack of

reliable information, or substantial inflation as a disincentive to

probation violations.

In the present cases, the state sentences imposed were not

aggravated felonies because the state sentencing judges entered

sentences of less than five years, nunc pro tunc, i.e., so as to

have legal effect from the dates of the initial sentencings. There

is no evidence that the state sentencing judges acted in bad faith

or for an invalid reason. Accordingly, Section 2L1.2 does not

require an increase of 16 levels in either case, and the district

courts’ judgments should be affirmed.

United States v. Vasquez-Balandran, 76 F.3d 648 (5th Cir.

1996), does not hold otherwise or require us to disturb the

district courts’ judgments in the present cases. In the Vasquez

case, this court simply held that in the context of enhancing a

defendant’s sentence under § 2L1.2, there is no meaningful

distinction between a Texas court’s “assessing” a term of

imprisonment and “imposing” a term of imprisonment. This court

reached that conclusion in response to Vasquez’s argument that

under Texas law, when the state court granted probation the

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sentence was “assessed” and not “imposed,” even though the sentence

at issue referred to its “imposition” and did not contain any

reference to an “assessed” sentence. Accordingly, because the

state court had sentenced Vasquez to ten years and then suspended

the imposition of the sentence and placed him on probation, this

court affirmed the district court’s holding that § 2L1.2 applied

based on Vasquez’s prior conviction of a crime of violence and a

sentence exceeding five years, even though it was suspended.

Consequently, I respectfully disagree with the majority’s

conclusion that Vasquez-Balandran establishes a mechanical timing

rule that forces the federal sentencing court to use a

retroactively superseded, non-existent state sentence when applying

§ 2L1.2. Instead, the Vasquez case requires that the federal

sentencing court use “the term of imprisonment imposed (regardless

of any suspension of such imprisonment)” to determine whether the

state sentence is one for an aggravated felony for purposes of

determining the enhancement question under § 2L1.2. Consequently,

I believe the district courts in the present cases acted in

accordance with the intention of the Sentencing Commission and

consistently with Vasquez-Balandran in using the currently or

actually existing state sentences in applying § 2L1.2.

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