F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
DEC 3 2002
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MANUEL SOTO-ORNELAS, No. 01-6411
a/k/a Jose Sanchez-Hernandez,
Juan Urueta-Rodriguez, Manuel
Ector Soto-Ornelas, Juan Urrutia,
Refaela Sierra, Manuel Sanchez and
Jose Guadalupe Sanchez-Aguilar,
Defendant - Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
(D.C. No. CR-01-106-C)
Submitted on the briefs:
June E. Tyhurst, Assistant Federal Public Defender, Oklahoma City,
Oklahoma, for Defendant-Appellant.
Robert G. McCampbell, United States Attorney, Rozia McKinney-Foster,
Assistant United States Attorney, Oklahoma City, Oklahoma, for
Plaintiff-Appellee.
Before HENRY , ANDERSON , and HARTZ , Circuit Judges.
HENRY , Circuit Judge.
An alien who has previously been convicted of an aggravated felony and
who later illegally reenters the United States after deportation is subject to a fine,
imprisonment for not more than twenty years, or both. See 8 U.S.C. § 1326(b)(2).
Defendant-appellant Manuel Soto-Ornelas was indicted on one count of illegal
reentry after a 1994 conviction for unlawful possession of cocaine, an aggravated
felony justifying an eight-level enhancement under the United States Sentencing
Guidelines (U.S.S.G.). In 1992, however, defendant had been convicted of
burglary of a dwelling, a crime of violence carrying a sixteen-level enhancement.
In this direct appeal, we are asked to decide whether the burglary conviction
could be used to enhance defendant’s sentence under § 1326(b)(2) or must the
enhancement be based on the drug charge, as it was the conviction listed in the
indictment and was also the conviction immediately preceding defendant’s last
deportation. We hold that the district court correctly relied on the burglary
conviction as the basis for an increased sentence under § 1326(b), and we affirm. 1
1
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.
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I. BACKGROUND
Defendant petitioned the district court to enter a plea of guilty. In the
initial presentence report (PSR), which relied on the 2000 version of the
Sentencing Guidelines, the probation officer increased defendant’s offense level
by sixteen levels, relying on defendant’s 1994 drug conviction and on U.S.S.G.
§ 2L1.2(b)(1)(A).
After preparation of the initial PSR, defendant was granted a continuance
and was not sentenced until after the 2001 version of the Sentencing Guidelines
had become effective. Under that version, possession of cocaine would only have
garnered an eight-level increase. See U.S.S.G. § 2L1.2(b)(1)(C). In response to
defendant’s objection to the sixteen-level increase, the probation officer amended
the original PSR to substitute two prior burglary convictions. Because the law
now defines aggravated felonies to include crimes of violence for which the term
of imprisonment is at least one year, 2
see 8 U.S.C. § 1101(a)(43)(F), and because
the burglary of a dwelling satisfies these two conditions, see U.S.S.G. § 2.L1.2,
cmt. n. 1(B)(ii)(II) (2001) (specifying burglary of a dwelling as a “crime of
violence”), the enhancement level remained at sixteen, see id. at (b)(1)(A).
The district court accepted the PSR and sentenced defendant to eight years’
imprisonment. Defendant argues that the court unlawfully substituted the older
2
Defendant served a four-year sentence on the burglary charge. PSR at 6.
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burglary conviction for the drug conviction immediately preceding his illegal
entry.
II. DISCUSSION
A. Standard of Review and 8 U.S.C. § 1326 Generally
Because he challenges the manner in which the district court applied and
interpreted the guidelines to his conviction for illegal reentry, defendant is raising
a question of law that we review de novo. United States v. Martinez-Villalva ,
232 F.3d 1329, 1332 (10th Cir. 2000).
The penalties for reentering the country after deportation vary widely
depending upon an alien’s criminal history. Without a criminal history, and
except for exclusion for such reasons as national security which are not pertinent
here, the penalty is a fine, imprisonment of not more than two years, or both.
8 U.S.C. § 1326(a). Aliens who reenter after “the commission of three or more
misdemeanors involving drugs, crimes against the person, or both, or a felony
(other than an aggravated felony) . . . [are] fined under Title 18, imprisoned not
more than 10 years, or both.” Id. § 1326(b)(1). The harshest penalties are
reserved for those illegal reentrants who have been previously convicted of an
aggravated felony . Id. § 1326(b)(2). As mentioned above, aliens in that category
are subject to a fine, imprisonment of up to twenty years, or both. Id.
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B. Which is the Relevant Felony?
Defendant does not argue that his previous burglary conviction does not
qualify as an aggravated felony for purposes of the statute or as a crime of
violence under the Sentencing Guidelines. Rather, he argues that the only
relevant felony conviction for purposes of § 1326(b)(2) was the cocaine
possession conviction because it was the most recent conviction immediately
preceding his last deportation.
1. Almendarez-Torres
At the sentencing hearing, defendant argued that the burglary conviction
could not be the basis for enhancement because it had not been listed in the
indictment. To the extent defendant raises that issue on appeal, we note that the
issue is foreclosed by Almendarez-Torres v. United States , 523 U.S. 224, 235
(1998), in which the Supreme Court concluded that the existence of a prior felony
or felonies for purposes of § 1326(b)(2) is a sentencing factor which “simply
authorizes a court to increase the sentence for a recidivist,” and does not define
a separate criminal offense. Id. at 226. Thus, “neither the statute nor the
Constitution requires the Government to charge the factor that it mentions, an
earlier conviction, in the indictment.” Id. at 226-27; see also United States v.
Mercedes , 287 F.3d 47 (2d Cir. 2002) (finding no infirmity under
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Almendarez-Torres where the government substituted a different aggravated
felony than the one charged in the indictment and admitted in the plea).
2. The Role of Recidivism
Turning to defendant’s primary argument, we note that “the relevant
statutory subject matter of [§ 1326(b)] is recidivism.” Almendarez-Torres ,
523 U.S. at 230. Recidivism is defined as “[a] tendency to relapse into a habit
of criminal activity or behavior.” Black’s Law Dictionary 1021 (7th ed. 2000).
The words “tendency” and “habit” are terms inclusive of a person’s total criminal
history, not just to some crime which may happen to immediately precede
a sentencing.
Further, the Supreme Court, in discussing the statute, explicitly referred to
the obligation of a sentencing judge to take into account “an offender’s prior
record in every case.” Almendarez-Torres , 523 U.S. at 230 (citing U.S.S.G.
§§ 4A.1.1 and 4A1.2). The district judge here understood that duty and referred
to her belief that “case law and certainly [the] statute and the Sentencing
Guidelines not only permit but require me to look at this defendant’s
criminal history in order to establish an appropriate sentence under the statute.”
R. Vol. II at 6. There is no indication in case law or in commentary to support
defendant’s position that only the immediately preceding felony is relevant here.
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C. Other Circuit Precedent
In United States v. Luna-Reynoso , 258 F.3d 111 (2d Cir. 2001), the court
confronted an argument essentially similar to defendant’s. There, the government
charged the defendant in 1999 with violation of § 1326 and relied on a 1987
burglary conviction as the prior aggravated felony for enhancement purposes
under § 1326(b)(2), even though the defendant had been convicted of other
offenses since 1987. The defendant conceded the existence and validity of the
burglary conviction but argued that, in 1987, burglary was not included in the
definition of aggravated felony. That change did not occur until 1996 when
8 U.S.C. § 1101(a)(43) was amended by § 321 of the Illegal Immigration Reform
and Immigrant Responsibility Act (IIRIRA). As such, the defendant argued that
his 1987 burglary conviction could not sustain an increased penalty under an
amended § 1326(b).
The Second Circuit rejected this argument. It found that, in addition to
adding burglary to the list of aggravated felonies, Congress also stated in the
statute that “the new definition of aggravated felony is to be used regardless of
whether the conviction for the offense included in the definition was entered
before, on, or after the September 30, 1996 effective date of IIRIRA.” Id. at 114
(quotation omitted). Further, the commentary to the implementing sentencing
guidelines noted that “the term aggravated felony is defined at 8 U.S.C.
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§ 1101(a)(43) without regard to the date of conviction of the aggravated felony.”
Id. (quotation omitted).
While defendant here does not raise the precise issue of Luna-Reynoso ,
we think the broad intent of Congress to make the IIRIRA’s new definition of
aggravated felony retroactive as discussed in Luna-Reynoso forecloses any
argument that only an immediately preceding felony can be considered for
purposes of § 1326(b)(2). If a burglary which was not an aggravated felony when
committed can later be considered as such for purposes of § 1326(b)(2)
enhancement, we find it even less problematic to rely on defendant’s 1992
burglary conviction for enhancement even if it did predate his later drug
conviction.
The second instructive case is Mercedes , 287 F.3d 47. There, like here, the
defendant protested an enhancement made on the basis of a felony other than the
one alleged in the indictment. The indictment had alleged a 1984 burglary
conviction, which, as mentioned above was not then an aggravated felony. After
defense counsel objected, the probation officer substituted a 1987 conviction for
possession and distribution of cocaine which qualified as an aggravated felony
even under the earlier law. Again, defense counsel objected, this time arguing
that the court should find that the defendant had been deported after his
conviction for using an altered United States passport, an offense not deemed to
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be an aggravated felony. The passport charge was the conviction immediately
preceding the defendant’s most recent deportation. The district court rejected
these arguments, and the Second Circuit affirmed.
Although Mercedes focuses on the defendant’s contention that his plea was
not knowing and voluntary because of the late substitution of felonies for
purposes of the recidivist enhancement, the case is helpful here because the court
takes for granted the government’s authority to “‘substitute’ a different
aggravated felony for the one incorrectly listed in the indictment.” Id. at 57-58
(finding no violation of Rule 11 where the court specifically informed the
defendant that it was required to take his criminal history into account).
Significantly for our purposes, there is no discussion of any infirmity in the
sentencing court’s refusal to rely solely on the immediately preceding passport
violation for purposes of enhancement.
D. Lenity
Finally, defendant argues that the statute is ambiguous and that, under those
circumstances, the rule of lenity should apply. We disagree. We see nothing
ambiguous in the statute; it is clearly aimed at punishing recidivist aliens who
reenter this country illegally. Defendant would have us rewrite the statute to limit
the consideration of aggravated felonies to only those convictions which
immediately precede the deportation in question. We reject this approach for two
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reasons. First, we agree with appellee that this would be an absurd result because
a felony-recidivist whose conviction preceding deportation was merely a
misdemeanor would escape the enhancement penalties for aggravated felonies
merely because of the timing of the conviction. As appellee notes, “[c]ourts must
guard against interpretations that might defeat a statute’s purpose as reflected by
its text.” Aplee. Br. at 12 (citing United States v. Cowan , 116 F.3d 1360, 1362-63
(10th Cir. 1997)). Second, any reworking of this statute is a legislative function,
not one for the courts.
The judgment of the United States District Court for the Western District
of Oklahoma is AFFIRMED.
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