IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-30792
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
HOMERO VALDEZ-VALDEZ,
Defendant-Appellant.
Appeal from the United States District Court
For the Eastern District of Louisiana
June 8, 1998
Before GARWOOD, JONES, and WIENER, Circuit Judges.
WIENER, Circuit Judge:
Defendant-Appellant Homero Valdez-Valdez, who pleaded guilty
to re-entry by a deported alien, appeals the district court’s
enhancement of his sentence and assessment of criminal history
points as a result of his felony kidnaping “conviction” in Texas,
which occurred before his deportation. Valdez contends that the
purported conviction is merely a deferred adjudication, as the
state court did not enter an adjudication of guilt. The gravamen
of Valdez’s argument is that such a deferred adjudication is not
the equivalent of a conviction under Texas law and therefore cannot
support a sentencing enhancement. He also appeals the district
court’s addition of two criminal history points based on the
kidnaping offense. Finding no merit in either of these arguments,
we affirm the sentence imposed by the district court.
I
FACTS AND PROCEEDINGS
Valdez is an alien and a native of Mexico. In 1994, he was
illegally present in the United States, and was arrested and
formally deported. In 1993, Valdez had been charged in Texas state
court with kidnaping, to which he pleaded guilty. The Texas court,
finding sufficient evidence of guilt, imposed six years probation
and 180 days imprisonment on work release, with a deferred
adjudication.1 The kidnaping proceeding is the foundation of both
the sentence enhancement and the addition of criminal history
points at issue in this appeal.
In November 1996, INS agents found Valdez in Jefferson Parish,
Louisiana. He admitted that he was from Mexico and that he had
entered the United States illegally. The following month he was
indicted for one count of illegal re-entry of a deported alien, in
violation of 8 U.S.C. § 1326. Valdez pleaded guilty as charged;
his plea was not made pursuant to a plea agreement. In his PSR the
probation office made the following sentencing recommendations:
Valdez’s base offense level is eight; four levels should be added
because his previous deportation occurred after conviction for a
1
The government also notes the statement in the pre-sentence
report (“PSR”) that a warrant issued for violation of his probation
and remains outstanding.
2
felony other than one involving violation of immigration laws,
i.e., kidnaping; and he is entitled to a two-point reduction for
acceptance of responsibility. As a result, his total offense level
is ten. Finally, his criminal history category is IV, which
includes two criminal history points for the 1993 guilty plea to
kidnaping. Valdez’s resulting total offense level and criminal
history category combine to produce a sentencing range of fifteen
to twenty-one months.
Valdez objected to the four-level increase based on his
purported felony conviction in the kidnaping case, contending that
his “deferred adjudication” should not be considered a conviction
for purposes of § 2L1.2(b)(1). He also objected to the two points
added to his criminal history score pursuant to § 4A1.1(b) for the
same offense. The district court overruled both objections and
sentenced Valdez to twenty-one months in prison, three years of
supervised release, and a mandatory special assessment of $100.
This appeal followed.
II
ANALYSIS
A. Standard of Review
“This Court reviews the application of the sentencing
guidelines de novo and the district court’s findings of fact for
clear error.”2 Whether the sentencing guidelines apply to a prior
2
United States v. Gooden, 116 F.3d 721, 723 (5th Cir.)(citing
United States v. Wimbish, 980 F.2d 312, 313 (5th Cir. 1992), cert.
denied, 508 U.S. 919, 113 S. Ct. 2365, 124 L. Ed. 2d 272 (1993)),
cert. denied, 118 S. Ct. 350, 139 L. Ed. 2d 272 (1997).
3
conviction is a question of law, which we review de novo.3
B. Offense Level —— Specific Offense Characteristic
Section 2L1.2 of the United States Sentencing Guidelines
(“Guidelines”) governs the sentence imposed for unlawfully entering
or remaining in the United States. The version under which Valdez
was sentenced provided for a base offense level of eight, with the
specific offense characteristic determined as follows:
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.4.U.S.S.G. § 2L1.2(b)(1).
5
3
United States v. Vasquez-Balandran, 76 F.3d 648, 649 (5th
Cir. 1996)(citing United States v. Garcia-Rico, 46 F.3d 8, 9 (5th
Cir.), cert. denied, 515 U.S. 1150, 115 S. Ct. 2596, 132 L. Ed. 2d
843 (1995)).
4
U.S. SENTENCING GUIDELINES MANUAL § 2L1.2(b)(1)(1995) [hereinafter
U.S.S.G.]. This section has been revised, effective November 1,
1997. It now reads:
(1) If the defendant previously was deported after a
criminal conviction, or if the defendant unlawfully
remained in the United States following a removal order
issued after a criminal conviction, increase as follows
. . . :
(A) If the conviction was for an aggravated
felony, increase by 16 levels.
(B) If the conviction was for (i) any other
felony, or (ii) three or more misdemeanor
crimes of violence or misdemeanor controlled
substance offenses, increase by 4 levels.
4
Application Note 1 of the 1997 version explains that “‘[f]elony
offense’ means any federal, state, or local offense punishable by
imprisonment for a term exceeding one year.”6
Valdez contends that the district court erred in treating his
deferred adjudication as a felony conviction. He first asserts
that a charge which is deferred without adjudication of guilt is
not considered a felony conviction under Texas law and therefore
should not be considered to be one for purposes of the Guidelines.
Valdez points out that the Texas Code of Criminal Procedure
(“TCCP”) specifically allows the judge to defer proceedings without
entering an adjudication of guilt when such an action is
warranted.7 The TCCP also provides a procedure for converting the
deferred adjudication to an adjudication of guilt if a condition
imposed in the original deferred adjudication agreement is
violated.8 Even though he pleaded guilty, Valdez’s deferred
adjudication was never converted to a conviction and no
adjudication of guilt was ever entered. Thus he insists that,
while this case may expose him to those proceedings, such
proceedings have not occurred. As such, Valdez contends, the Texas
kidnaping charge cannot be deemed a felony conviction for purposes
of § 2L1.2 of the Guidelines.
Relying on our decision in Vasquez-Balandran, Valdez asserts
that this court has recognized that deferred prosecutions under
6
U.S.S.G. § 2L1.2, comment. (n.1)(1997).
7
TEX. CODE CRIM. P. ANN. art. 42.12, § 5(a)(West Supp. 1998).
8
Id. § 5(b).
5
Texas law are distinguishable from convictions suitable for
enhancement purposes. In that case we determined that a suspended
Texas sentence can be used for enhancement even if the sentence was
“assessed” rather than “imposed.”9 Valdez notes our observation in
dicta that the Texas deferred adjudication procedure does not
require “assessing” a term of imprisonment.10 The clear
implication, concludes Valdez, is that the deferred adjudication
process results in something less than a conviction.
Second, Valdez argues that because a different section of the
Guidelines, § 2K2.1 involving firearms offenses, explicitly
includes “deferred adjudications” within its definition of
“conviction,”11 the absence of such explicit language in § 2L1.2,
the provision here at issue, reflects an intention by the
Sentencing Commission not to include “deferred adjudications” in
the latter section. If the Sentencing Commission intended § 2L1.2
to treat deferred adjudications as prior felony convictions, Valdez
9
Vasquez-Balandran, 76 F.3d at 651.
10
Id. at 650.
11
See § 2K2.1, comment. (n.5)(“‘[P]rior felony conviction(s),’
are defined in § 4B1.2 . . . . For purposes of determining the
number of such convictions . . . , count any such prior conviction
that receives any points under § 4A1.1 (Criminal History
Category).”). Section 4A1.1 Application Note 3 states that “[a]
diversionary disposition is counted only where there is a finding
or admission of guilt in a judicial proceeding. See § 4A1.2(f).”
Section § 4A1.2(f) states: “Diversion from the judicial process
without a finding of guilt (e.g., deferred prosecution) is not
counted. A diversionary disposition resulting from a finding or
admission of guilt, or a plea of nolo contendere, in a judicial
proceeding is counted as a sentence under § 4A1.1(c) even if a
conviction is not formally entered, except that diversion from
juvenile court is not counted.”
6
continues, it would have so instructed, as it did in § 2K2.1. As
there is no mention in § 2L1.2 of treating prior deferred
adjudications as prior felony convictions, concludes Valdez, such
adjudication should not be counted as prior felony convictions.
Finally, Valdez asserts that we have recognized that a defendant
who pleaded guilty in a deferred adjudication under Texas law did
not receive a conviction for purposes of immigration law.12
The government responds that the omission of a specific
reference does not preclude either the finding made by the district
court in this case or the use of a definition of conviction from
another section of the Guidelines. The government points out that,
although the definitions in specific sections of the Guidelines are
not designed for general applicability, “their applicability to
sections other than those expressly referenced must be determined
on a case by case basis.”13 This provision, urges the government,
directly contradicts Valdez’s assertion that the omission of an
explicit reference prohibits use of a definition from another
section.
The government further asserts that the definition of
conviction includes deferred adjudications, provided there was a
finding or admission of guilt.14 It points to § 4A1.2(f) ——
addressing diversionary dispositions in the computation of criminal
12
Martinez-Montoya v. INS, 904 F.2d 1018, 1025-26 (5th Cir.
1990).
13
U.S.S.G. § 1B1.1, comment. (n.2).
14
U.S.S.G. § 4A1.2(f).
7
history —— which states:
“Diversion from the judicial process without a finding of
guilt (e.g., deferred prosecution) is not counted. A
diversionary disposition resulting from a finding or
admission of guilt, . . . in a judicial proceeding is
counted as a sentence under §4A1.1(c) even if a
conviction is not formally entered, except that diversion
from juvenile court is not counted.”15
The government argues that this definition should be used in
the instant case to further a policy of fair and equal treatment,
which looks to the substance of the proceeding. The kidnaping
proceeding clearly fits this definition, continues the government,
as there was an admission of guilt, a finding of sufficient
evidence of guilt, a sentence of 180 days in jail and a term of
probation. Furthermore, notes the government, we have found Texas
deferred adjudications to meet this definition.16 The government
also relies on our decision in United States v. Giraldo-Lara,17 in
which we held that a “deferred adjudication” counts as a “prior
sentence” in the context of computing a criminal history score
under § 4A1.2.
The government emphasizes that revocation of Valdez’s
probation is pending, and that, without enhancement, his previous
15
Id.
16
See United States v. Cisneros, 112 F.3d 1272 (5th Cir.
1997)(holding that deferred adjudication for felony possession of
marijuana received in Texas state court was “prior conviction” for
purposes of sentence enhancement for drug conviction based on prior
convictions for felony drug offenses —— i.e., 21 U.S.C. § 841);
United States v. Stauder, 73 F.3d 56 (5th Cir. 1996)(holding that
a deferred adjudication could be used for calculating a base
offense level for a defendant convicted of a firearm offense under
the U.S.S.G.).
17
919 F.2d 19 (5th Cir. 1990).
8
wrongdoing would be under-represented in the instant sentence.
Finally, the government maintains that treating the kidnaping
incident as a conviction for enhancement purposes upholds the
purpose and policy described in Guidelines § 4A1.2, Application
Note 9: Counting prior adult diversionary dispositions involving
a judicial determination of guilt or an admission of guilt
“reflects a policy that defendants who receive the benefit of
rehabilitative sentence and continue to commit crimes should not be
treated with further leniency.”18
Valdez’s reliance on our decision in Vasquez-Balandran is
misplaced. In that case, the defendant argued that the district
court erroneously interpreted § 2L1.2(b)(2) —— sentence enhancement
as a result of conviction for an aggravated felony —— as applicable
to his case. Relying on Texas law, he asserted that the district
court erroneously determined that his prior state conviction for
robbery was an “aggravated felony” as defined by the Guidelines.
One element of the commentary’s definition of an aggravated felony
is the imposition of a sentence of imprisonment of at least five
years. The defendant urged that in his case imprisonment was not
“imposed”; rather, when the trial court granted probation, a
sentence was “assessed.”19
18
U.S.S.G. § 4A1.2, comment. (n.9).
19
“The probation officer responded that the state judgment
indicated a sentence of ten years imprisonment was imposed and then
suspended, and that the guideline commentary provided that it [the
increase] applied ‘regardless of any suspension of such
imprisonment.’” Vasquez-Balandran, 76 F.3d at 649. The Defendant
again objected, “arguing that under Texas law, when a defendant
receives probation, a sentence is not ‘imposed’ unless and until
9
We determined in Vasquez-Balandran that the distinction made
by the Texas court between “assessing” a sentence and “imposing”
one is not controlling, as “federal law rather than state law
applies to the issue of statutory interpretation . . . .”20 In so
doing, we further noted that we are “not constrained by a state’s
‘treatment of a felony conviction when we apply the federal
sentence-enhancement provisions.’”21 Moreover, “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.”22 As such, we
concluded that neither the Sentencing Commission nor Congress
intended to make the application of § 2L1.2(b)(2) wholly dependent
on state law; that given the purpose and policy the Sentencing
Commission sought to serve, federal law controlled. Just as Texas
law was not controlling in that case, it is not controlling in the
instant case.
In United States v. Stauder,23 we held that a defendant’s
probation is revoked.” Id. The district court adopted the PSR,
applying the level increase, even though the Defendant’s sentence
was suspended. Id.
20
Id. at 650.
21
Id. (quoting United States v. Morales, 854 F.2d 65, 68 (5th
Cir. 1988)).
22
Id. (citing Wilson v. INS, 43 F.3d 211, 214-15 (5th Cir.),
cert. denied, 516 U.S. 811, 116 S. Ct. 59, 133 L. Ed. 2d 23
(1995)(explaining that federal law governs the application of
federal legislation in the absence of clear language to the
contrary)(quoting Yanez-Popp v. INS, 998 F.2d 231 (4th Cir. 1993)).
23
73 F.3d 56 (5th Cir. 1996).
10
deferred adjudication resulting from a finding or admission of
guilt could be used for calculating the base offense level under §
2K2.1; in other words, a Texas deferred adjudication constituted a
“prior conviction” in the context of that section. Like Valdez,
Stauder argued that, as his Texas deferred adjudication was not a
conviction under Texas law, it should not have been counted in
calculating his base offense level.
In Stauder, we looked to the commentary of § 2K2.1 which
refers to application note 3 to § 4B1.2 for the definition of
“prior felony conviction(s).”24 Note 3 defines a “prior felony
conviction” as “a prior adult federal or state conviction for an
offense punishable by death or imprisonment for a term exceeding
one year, regardless of whether such offense is specifically
designated as a felony and regardless of the actual sentence
imposed.”25 We went on to examine the commentary to § 2K2.1, which
specifies that “[f]or purposes of determining the number of . . .
convictions under [§ 2K2.1(a)(4)(A)], count any such prior
conviction that receives any points under § 4A1.1 (Criminal History
Category).”26 This led us to § 4A1.2, the Guideline that contains
the definitions and instructions for computing a defendant’s
criminal history. It states that “[a] diversionary disposition
resulting from a finding or admission of guilt . . . in a judicial
24
§ 2K2.1, comment. (n.5).
25
§ 4B1.2, comment. (n.3).
26
Stauder, 73 F.3d at 57 (quoting U.S.S.G. § 2K2.1(a)(4)(A),
comment. (n.5))(emphasis in Stauder).
11
proceeding is counted as a sentence under § 4A1.1(c) even if a
conviction is not formally entered . . . .’”27
We concluded that Stauder’s deferred adjudication constituted
a prior felony conviction, as (1) “the Guidelines provide that
deferred adjudications resulting from a finding or admission of
guilt are to be considered in computing the criminal history
category”; and (2) § 2K2.1 “provides that any prior ‘conviction’
that receives points for purposes of determining the criminal
history category is to be considered in determining the number of
prior felony convictions for calculating the base offense level
under § 2K2.1.”28 Stated another way, his deferred adjudication
constituted a prior felony conviction because “[a]lthough § 2K2.1
used the term ‘conviction’, it refers specifically to the criminal
history provisions, which, . . . include deferred adjudications
such as Stauder’s in calculating a defendant’s criminal history
score.”29 We discern no error of fact or law in the district
court’s calculation of Valdez’s offense level.
C. Criminal History Category
As stated previously, we held in United States v. Giraldo-Lara
that a “deferred adjudication” counts as a “prior sentence” in the
context of computing a criminal history score under § 4A1.2. In
that case, we noted that § 4A1.2(f) provides:
(f) Diversionary Dispositions
27
Id. (quoting U.S.S.G. § 4A1.2(f))(emphasis in Stauder).
28
Id.
29
Id.
12
Diversion from the judicial process without a finding of
guilt (e.g., deferred prosecution ) is not counted. A
diversionary disposition resulting from a finding or
admission of guilt, or a plea of nolo contendere, in a
judicial proceeding is counted as a [prior] sentence . .
. even if a conviction is not formally entered.30
We further observed that the commentary to that section added that
“‘diversionary dispositions [are counted] if they involved a
judicial determination of guilt or an admission of guilt in open
court.’”31 As the defendant in that case had entered a guilty plea
in the state prosecution, his “deferred adjudication probation”
could be counted as a “prior sentence” for calculating his criminal
history score under the terms of § 4A1.2(f).
Valdez nevertheless contends that the district court erred in
computing his criminal history score when it applied § 4A1.1(b) to
assess two points for his 1993 guilty plea to kidnaping. He
contends that § 4A1.1(c) is the applicable subsection and that
under it he should have received only one point for the kidnaping
adjudication. This would reduce his criminal history score from
seven to six and his criminal history category from IV to III.
Observing that Valdez received a 180-day jail term for the state
kidnaping guilty plea in 1993, the government counters that Valdez
was properly assessed two criminal history points for this
adjudication.
Section 4A1.1 provides for the computation of a defendant’s
criminal history category. Under this section, the sentencing
30
Giraldo-Lara, 919 F.2d at 22-23 (quoting U.S.S.G.
§ 4A1.2(f)(emphasis in Giraldo-Lara).
31
Id. at 23 (quoting U.S.S.G. § 4A1.2(f), comment. (n.9)).
13
court is instructed to
(a) Add 3 points for each prior sentence of imprisonment
exceeding one year and one month.
(b) Add 2 points for each prior sentence of imprisonment
of at least sixty days not counted in (a).
(c) Add 1 point for each prior sentence not counted in
(a) or (b), up to a total of 4 points for this item.32
Application Note 3 makes clear that under § 4A1.1(c), “[a]
diversionary disposition is counted only where there is a finding
or admission of guilt in a judicial proceeding. See § 4A1.2(f).”33
The commentary to § 4A1.1 also provides that it must be read
together with § 4A1.2, which contains the definitions and
instructions for computing criminal history.34 Section 4A1.2 states
that “[a] conviction for which the imposition or execution of
sentence was totally suspended or stayed shall be counted as a
prior sentence under § 4A1.1(c).”35 The previously mentioned
provision regarding diversionary dispositions —— § 4A1.2(f) ——
falls under that section; “[a] diversionary disposition resulting
from a finding or admission of guilt, . . . in a judicial
proceeding is counted under § 4A1.1(c) even if a conviction is not
formally entered . . . .”36 Additionally, however, the commentary
to § 4A1.2 states that “[t]o qualify as a sentence of imprisonment,
32
U.S.S.G. § 4A1.1(a)-(c).
33
Id. at comment. (n.3).
34
Id. at Commentary.
35
U.S.S.G. § 4A1.2 (a)(3)(emphasis added).
36
U.S.S.G. § 4A1.2(f).
14
the defendant must have actually served a period of imprisonment on
such sentence.”37 Moreover, “criminal history points are based on
the sentence pronounced, not the length of time actually served.”38
Finally, “[a] sentence of probation is to be treated as a sentence
under §4A1.1(c) unless a condition of probation requiring
imprisonment of at least sixty days was imposed.”39 Valdez’s
adjudication clearly specified actual incarceration in excess of
sixty days —— in fact, treble that amount.
When computing a defendant’s criminal history category, under
§ 4A1.1(b), a sentencing court is instructed to “[a]dd 2 points for
each prior sentence of imprisonment of at least sixty days not
counted in (a).”40 Valdez has offered no plausible explanation why
this provision would not apply to his 180-day jail sentence for the
1993 guilty plea. His assertion that his kidnaping offense should
be treated under § 4A1.1(c) and thus assessed one point because he
received a deferred adjudication is unavailing. Valdez was
sentenced to —— and apparently served —— 180 days in jail, albeit
on work release. Thus, within the contemplation of § 4A1.1(b), a
condition of his probation required imprisonment of “at least sixty
37
U.S.S.G. § 4A1.2, comment. (n.2).
38
Id.
39
Id. (emphasis added).
40
U.S.S.G. § 4A1.1(b). Under § 4A1.1(c), a sentencing court
is to “[a]dd 1 point for each prior sentence not counted in (a) or
(b), up to a total of 4 points for this item.” U.S.S.G.
§ 4A1.1(c).
15
days.”41
A plain reading of § 4A1.1 illustrates that Valdez’s sentence
fits squarely within subsection (b), and not within subsection (c).
The only plausible way to apply § 4A1.1, both chronologically and
logically, is to proceed from (a) to (b) to (c): Subsection (b)
applies only to the extent a sentence is not counted in subsection
(a), and subsection (c) applies only to the extent a sentence is
not counted in either (a) or (b). As no part of Valdez’s sentence
is counted under (a), and his entire sentence is counted under (b),
there is nothing left to count under (c). Indeed, his sentence
would fall under (c) only if his deferred adjudication included no
time to be served in jail. When, as here, there is a deferred
adjudication under a plea of guilty that includes time to be served
of at least sixty days, but less than one year and one month, the
prior offense is properly considered under (b): Subsection (a) is
inapplicable and subsection (c) never comes into play. We conclude
that the sentencing court properly assessed two criminal history
points for the kidnaping offense.42
41
Id.
42
We note in passing that Valdez did not argue that his work
release was not a “sentence of imprisonment” under the Guidelines.
Such an argument would likely fail as well. See United States v.
Schomburg, 929 F.2d 505 (9th Cir. 1991). In that case, the Ninth
Circuit held that the district court did not err in assessing two
points for defendant’s prior sentence of 60 days in county jail,
which was served on a weekend work project. Id. at 507. The court
rejected defendant’s argument that “because he was never in custody
on the 60-day sentence, it should not be counted as a sentence of
imprisonment.” Id. The court noted that the sheriff ultimately
determined the defendant’s eligibility for the project and could
have imprisoned the defendant at his discretion; “[t]hus, the
sentence, as pronounced by the court at the outset, was a sentence
16
III
CONCLUSION
We have held in the context of other guidelines that a Texas
“deferred adjudication” should be considered either a prior
“conviction” or prior “sentence.” We recognize that § 2L1.2(b)(1),
unlike other guidelines previously considered, does not expressly
direct the sentencing court to consider prior adjudications
regardless of whether a prison term for the adjudication is
suspended. Even so, we perceive no good reason to depart from our
previous positions addressing a Texas “deferred adjudication” and
therefore hold that such a disposition may be counted as a
“conviction for a felony” under § 2L1.2(b)(1).43.Id. 44
As for
Valdez’s criminal history category, § 4A1.1(b) instructs a
sentencing court to “[a]dd 2 points for each prior sentence of
imprisonment of at least sixty days not counted in (a).”45
Subsection (c) is inapplicable to Valdez, given his sentence of
non-probated incarceration exceeding sixty days. The district
court correctly added two points to his criminal history category.
of imprisonment subject to alteration at the Sheriff’s discretion.”
Id.
43
In response to Valdez’s reliance on Martinez-Montoya, which
pertains to the consideration of deferred adjudication for purposes
of immigration law, we note that this court in Stauder rejected
that defendant’s reliance on that case, commenting that “[it] did
not involve the interpretation of U.S.S.G. § 2K2.1.”
Stauder, 73 F.3d at 57 n.*. We again find argument based on
Martinez-Montoya unavailing in the context of interpreting the
Guidelines.
45
U.S.S.G. § 4A1.1(b).
17
AFFIRMED.
18