F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
MAR 2 2000
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee, No. 99-4076
v. D. Utah
MARTIN ESCARINO-CARRILLO, (D.C. No. 98-CR-0543-C)
Defendant-Appellant.
ORDER AND JUDGMENT *
Before , BALDOCK , HENRY and LUCERO , Circuit Judges.
Mr. Escarino-Carrillo entered a plea of guilty to a charge of unlawful
reentry of a deported alien in violation of 8 U.S.C. § 1326. On appeal, he
contests a sixteen-point sentencing enhancement made pursuant to USSG
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
§2L1.2(b)(1)(A) by the district court as a result of his aggravated felony
convictions that preceded his deportation. 1
Mr. Escarino-Carrillo seeks a downward departure based on the date of the
prior aggravated felony convictions, which preceded the effective dates of
amendments to the definition of “aggravated felony” in the Immigration and
Nationality Act (“INA”). See generally United States v. Baca-Valenzuela , 118
F.3d 1223, 1225-26 (8th Cir. 1997) (summarizing various 1988, 1990, and 1991
statutes and amendments that amended provisions on illegal reentry after
deportation). We have squarely decided that the definition of “aggravated felony”
includes convictions occurring before the November 29, 1990 effective date of
amendments to the INA. See United States v. Aranda-Hernandez , 95 F.3d 977,
983 (10th Cir. 1996) (“We . . . hold that the aggravated felony enhancement
applies to all past aggravated felonies, regardless of the date committed.”) .
“[B]ecause the offense charged is [Mr. Escarino-Carrillo’s] illegal reentry,
not the aggravated felony,” there is no violation of the Ex Post Facto Clause, U.S.
Const. art. I, § 9. Id. Several other circuits have held the same. See United
States v. Lozano , 138 F.3d 915, 916-17 (11th Cir. 1998) (“At the time of the
1
After examining the briefs and appellate record, this panel has
determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G).
The case is, therefore, ordered submitted without oral argument.
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commission of [the offense of illegally reentering the country], the penalties were
unambiguous, and any subsequent changes have not be applied to [defendant’s]
detriment.”); Baca-Valenzuela , 118 F.3d at 1230 (“Congress intended [the
defendant’s] 1987 drug conviction to be treated as an aggravated felony for
purposes of enhanced punishment under Section 1326(b).”); United States v.
Adkins , 102 F.3d 111, 113 (4th Cir. 1996); United States v. Saenz-Forero , 27
F.3d 1016, 1021 (5th Cir. 1994); United States v. Forbes , 16 F.3d 1294, 1302 (1st
Cir. 1994); see also Scheidemann v. INS , 83 F.3d 1517, 1521-22 (3rd Cir. 1996).
“We are bound by the precedent of prior panels absent en banc
reconsideration or a superseding contrary decision by the Supreme Court.”
United States v. Nichols , 169 F.3d 1255, 1261 (10th Cir. 1999) (quoting In re
Smith , 10 F.3d 723, 724 (10th Cir. 1993)). Mr. Escarino-Carrillo recognizes our
binding precedent and has submitted a Motion to Permit Late Filing of Petition
for En Banc Consideration. See Fed. R. App. P. 35(c) (“A petition that an appeal
be heard initially en banc must be filed by the date when the appellee’s brief is
due.”).
In this motion, Mr. Escarino-Carrillo asks us to reconsider our holding in
Aranda-Hernandez and to adopt the Ninth Circuit’s approach outlined in United
States v. Fuentes-Barahona , 111 F.3d 651 (9th Cir. 1997), where the court applied
the rule of lenity and construed USSG §2L1.2(b)(1)(A) as most favorable to the
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defendant. In Fuentes-Barahona , the Ninth Circuit held that a “‘crime of
violence’ that occurred before November 29, 1990, does not qualify as an
‘aggravated felony’ for sentencing enhancement purposes under U.S.S.G. §
2L1.2(b)(2).” 111 F.3d at 653. We have adopted the opposing view. See
Aranda-Hernandez , 95 F.3d at 983. Absent an ambiguity in our precedent, “there
is no occasion for this Court to apply the rule of lenity” or to consider its
applicability to the Sentencing Guidelines. United States v. Westcott , 159 F.3d
107, 116-17 (2d Cir. 1998). Mr. Escarino-Carrillo can point to no ambiguity or
supporting authority in our circuit’s case law to sustain his claim.
This panel may grant an untimely petition for an en banc hearing and issue
an express order that the request be transmitted to the full court. See 10th Cir. R.
35.3. Mr. Escarino-Carrillo proffers no satisfactory reason for his late filing. We
opt not to issue this order for several reasons: (1) our circuit has maintained
uniformity regarding the retroactivity of the aggravated felony sentencing
enhancements; see Fed. R. App. P. 35(a)(1); (2) the Aranda-Hernandez holding
does not conflict with a decision of the United States Supreme Court; see Fed. R.
App. P. 35(b)(1)(A); and (3) the proceeding does not involved a question of
“exceptional importance.” Fed R. App. P. 35(a)(2). A question of “exceptional
importance” might exist if the issue was one on which our holding conflicts with
the “authoritative decisions of other United States Courts of Appeals that have
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addressed the issue.” Fed. R. App. P. 35(b)(1)(B). On the contrary, our
reasoning and holding in Aranda-Hernandez comports with that of several other
circuits (as noted above) and conflicts with only the Ninth Circuit’s approach.
Accordingly, we DENY Mr. Escarino-Carrillo’s motion to untimely file a
petition for initial hearing en banc and AFFIRM the district court’s sentencing of
Mr. Escarino-Carrillo.
Entered for the Court,
Robert H. Henry
Circuit Judge
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