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this opinion should not be published and is not precedent except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state sentence was revoked following his guilty plea to the section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his reentry Arrellin’s five-year probated state sentence was
revoked and reentered as a sentence of four years’ confinement.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
21
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.
22