F I L E D
United States Court of Appeals
Tenth Circuit
DEC 31 2002
PUBLISH
PATRICK FISHER
Clerk
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
v.
No. 02-4006
NICHOLAS ZAMUDIO, aka Martin
Avila, Alejandro Ortiz-Avila,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Utah
(D.C. No. 1:00-CR-12-J)
Submitted on the Briefs:
Paul M. Warner, United States Attorney, and Wayne T. Dance, Assistant United
States Attorney, Salt Lake City, Utah, filed briefs for Plaintiff-Appellant.
Edward K. Brass of Salt Lake City, Utah, filed a brief for Defendant-Appellee.
Before SEYMOUR, Circuit Judge, BRORBY, Senior Circuit Judge, and
BRISCOE, Circuit Judge.
SEYMOUR, Circuit Judge.
The United States brings this appeal challenging the district court’s
sentence of Nicholas Zamudio. The government alleges the district court erred by
not subjecting Mr. Zamudio to a sixteen-level sentencing enhancement under
U.S.S.G. § 2L1.2(b)(1)(A). We reverse and remand for resentencing in
accordance with this opinion.
I
Mr. Zamudio pled guilty to a charge of illegal re-entry into the United
States as a deported alien. See 8 U.S.C. § 1326. Under the sentencing guidelines,
a defendant who illegally enters the United States who “previously was deported
after a criminal conviction . . . [and] the conviction was for an aggravated
felony,” is subject to a sixteen-level sentencing increase to his base offense level
for the illegal re-entry charge. U.S.S.G. § 2L1.2(b)(1)(A) (2000). 1
Two years prior to the illegal re-entry charge, Mr. Zamudio had been
deported from the United States after pleading guilty in Utah state court to
distributing marijuana. His state plea was detailed in a signed “Plea in Abeyance”
which outlined that he was required to pay a fine of $1,000 over a six month
1
“The court shall use the Guideline Manual in effect on the date that the
defendant is sentenced.” U.S.S.G. § 1B1.11(a). Accord United States v. Moudy,
132 F.3d 618, 620 n.1 (10th Cir. 1998). Mr. Zamudio was sentenced on June 13,
2001, under the 2000 edition of the Guidelines.
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period. If he complied with the terms of the abeyance, his offense would be
reduced to a misdemeanor. At his sentencing for the current offense, the
government contended Mr. Zamudio’s base offense should be increased by sixteen
levels because his Utah plea in abeyance qualified as a conviction for an
aggravated felony under the guideline.
The district court did not apply the enhancement. The government filed a
motion to reconsider, arguing that Mr. Zamudio’s plea in abeyance satisfied the
definition of conviction laid out in 8 U.S.C. § 1101(a)(48)(A), thereby qualifying
him for the sentencing enhancement provisions in § 2L1.2(b)(1)(A). The district
court agreed, determining that the sentence it initially imposed on Mr. Zamudio
was erroneous. Because the government’s motion to reconsider fell outside the
time frame in which the court could modify Mr. Zamudio’s sentence, however,
the district court declared that it lacked jurisdiction to review and correct its
ruling. The government appeals.
II
We first address Mr. Zamudio’s assertion that we lack jurisdiction over this
appeal because the government failed to comply with 18 U.S.C. § 3742(b).
Section 3742(b) permits the government to file a notice of appeal for a sentence it
believes “was imposed as a result of an incorrect application of the sentencing
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guidelines.” Id. However, “[t]he Government may not further prosecute such
appeal without the personal approval of the Attorney General, the Solicitor
General, or a deputy solicitor general designated by the Solicitor General.” Id.
Mr. Zamudio’s sentence was entered on November 28, 2001, and the
government timely filed its notice of appeal thirty days later, thereby establishing
our jurisdiction over this case pursuant to 28 U.S.C. § 1291. 2 On January 14,
2002, the government obtained approval from the Solicitor General to further
prosecute this appeal. The government filed its opening brief on April 11, 2002,
and upon Mr. Zamudio’s assertion that this court lacked jurisdiction to hear the
government’s appeal for its failure to comply with § 3742(b), the government
provided a copy of the Solicitor General’s approval in its reply brief. See Aplt.
reply br., attach. A. The government contends that its late submission of proof of
approval from the Solicitor General does not deprive us of our jurisdiction to hear
this appeal. We agree.
Our sister circuits have examined the manner and timing by which the
government must prove its compliance with § 3742(b) and have concluded that
the prior approval portion of the statute is not jurisdictional in nature. See United
States v. Abbell, 271 F.3d 1286, 1290 n.1 (11th Cir. 2001), cert. denied 123 S.Ct.
2
“The courts of appeals . . . shall have jurisdiction of appeals from all final
decisions of the district courts of the United States . . . .” 28 U.S.C. § 1291.
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74 (2002) (§ 3742(b) not jurisdictional; government’s proof of approval in
response brief is sufficient); United States v. Hendrickson, 22 F.3d 170, 172 n.1.
(7th Cir. 1994) (court not divested of jurisdiction even if government failed to
secure approval to bring appeal); United States v. Gonzalez, 970 F.2d 1095, 1101-
02 (2d Cir. 1992) (government’s two month delay after filing notice of appeal in
securing permission to advance appeal not jurisdictional defect); United States v.
Long, 911 F.2d 1482, 1483-85 (11th Cir. 1990) (Attorney General’s personal
approval of government’s appeal not jurisdictional and can be delegated to
subordinates); United States v. Smith, 910 F.2d 326, 328 (6th Cir. 1990) (statute
does not require personal approval of Attorney General be in writing or filed in
Court of Appeals), superceded by statute on other grounds as noted by United
States v. Mercer, 22 Fed. Appx. 415 (6th Cir. 2001); United States v. Gurgiolo,
894 F.2d 56, n.1 (3rd Cir. 1990) (approval can be granted by deputy Attorney
General and case need not be dismissed where government failed to indicate
approval in notice of appeal).
Section 3742(b) was designed to allow the government to appeal sentences
falling below the appropriate guideline range by focusing “the appellate courts’
attention on those sentences for which review is crucial to the proper functioning
of the sentencing guidelines and to provide a means to correct erroneous and
clearly unreasonable sentences.” Long, 911 F.2d at 1484 (citing S.Rep. No. 225,
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98th Cong. 2d Sess., at 155, reprinted in 1984 U.S. Code Cong. & Admin. News
3182, 3338). Congress was persuaded that allowing the government to appeal
sentences would permit “reviewing courts to correct the injustice arising from a
sentence that [is] patently too lenient.” S.Rep. No. 225, 98th Cong. 2d Sess., at
151, reprinted in 1984 U.S. Code Cong. & Admin. News 3182, 3334). Congress
enacted the statute’s prior approval requirement to “assure that such appeals are
not routinely filed for every sentence below the guidelines.” Id. at 154, 1984
U.S. Code Cong. & Admin. News at 3337. See also Gonzalez, 970 F.2d at 1102;
Long, 911 F.2d at 1484. While “it is undisputed that Congress intended that such
permission be obtained, . . . proof of the personal approval is not of jurisdictional
dimensions in the sense that a timely notice of appeal in a criminal case is
jurisdictional.” Smith, 910 F.2d 326, 328; see also Gonzalez, 970 F.2d at 1102
(approval policy may be fulfilled without interpreting requirement as
jurisdictional); Long, 911 F.2d at 1484 (same).
Moreover, the statute’s semantic structure indicates the government’s
receipt of prior approval for appeal from the Attorney General or his designates is
not jurisdictionally predictive. Section 3742(b) begins by stating “[t]he
government may file a notice of appeal in the district court for review of an
otherwise final sentence . . . .” 18 U.S.C. § 3742(b). After listing the different
grounds upon which the government may file its notice of appeal, the statute then
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provides that the government must obtain approval from the appropriate official
before it further prosecutes the appeal. Id. Hence, it is the government’s filing of
the notice of appeal which establishes this court’s appellate jurisdiction pursuant
to 28 U.S.C. § 1291, rather than the government’s obtaining of approval. See
Gonzalez, 970 F.2d at 1102 (citing 18 U.S.C. § 3742(b)). 3
Here, the government obtained permission from the Solicitor General and
produced a copy of such approval in its reply brief. Such proof satisfies §
3472(b). See United States v. Dadi, 235 F.3d 945, 955 (5th Cir. 2000), cert.
3
Significantly, § 3742(b) once required the government to obtain approval
prior to filing the notice of appeal. 18 U.S.C. § 3742(b) (Supp. III 1985). Thus,
the statute read “[t]he Government may file a notice of appeal . . . if . . . the
Attorney General or Solicitor General personally approves the filing of the notice
of appeal.” Id. In November 1990, Congress amended § 3742(b) to specify that
approval be required only before further prosecution of the appeal. See 18 U.S.C.
§ 3742(b) (1988), amended by 18 U.S.C. § 3742(b) (Supp. II 1990). The
amendment was described as “technical” and “minor substantive.” See Crime
Control Act of 1990, Pub.L. No. 101-647, § 3501(1), (2) (1990).
Judicial interpretation of the pre-1990 amended statute had indicated that
the prior approval portion of § 3742(b) should not be read as jurisdictional. See
Long, 911 F.2d at 1484 (decided Aug 28, 1990) (citing with approval Gurgiolo,
894 F.2d at n.1 (decided Jan. 12,1990)); Smith, 910 F.2d at 328 (decided Aug. 6,
1990). Moreover, in September 1994, the statute was further amended. The only
change was the deletion of a comma following the word “government” in the first
sentence of § 3742(b). Prior to this minor amendment, two other courts had held
§ 3742(b)’s prior approval requirement was not jurisdictional. See Hendrickson,
22 F.3d at 172 n.1 (decided April 20, 1994); Gonzalez, 970 F.2d at 1102 (decided
July 24, 1992). “Congress is presumed to be aware of an administrative or
judicial interpretation of a statute and to adopt that interpretation when it reenacts
a statute without change.” Lindahl v. Office of Personnel Management, 470 U.S.
768, 782 n.15 (1985).
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denied 532 U.S. 1072 (2001) (government proved approval to file appeal by
attaching copy of permission to reply brief); United States v. Petti, 973 F.2d 1441,
1446 n.9 (9th Cir. 1992) (same). The government’s appeal is properly before this
court.
III
The government maintains the district court erred when it did not increase
Mr. Zamudio’s base offense level by sixteen in accordance with 8 U.S.C. §
1326(b)(2) 4 and U.S.S.G. § 2L1.2(b)(1)(A). 5 Specifically, the government
contends the district court should have found that Mr. Zamudio’s plea in abeyance
constituted a conviction as defined by 8 U.S.C. § 1101(a)(48)(A), thereby
triggering the enhancement provisions of § 1326(b)(2) and the sentencing
guidelines. On appeal, “[w]e review de novo the district court’s interpretation of
a criminal statute.” United States v. Valenzuela-Escalante, 130 F.3d 944, 945
(10th Cir. 1997).
8 U.S.C. § 1326(b)(2) details the criminal penalties for deported aliens
4
who illegally re-enter the United States. Specifically, any alien “whose removal
was subsequent to a conviction for commission of an aggravated felony . . . shall
be fined under such title, imprisoned not more than 10 years, or both.” 8 U.S.C. §
1326(b)(2).
The guidelines indicate that where a defendant previously was “deported
5
after a criminal conviction” and the “conviction was for an aggravated felony,”
his sentence for illegal re-entry should be increased by sixteen levels. U.S.S.G. §
2L1.2(b)(1)(A).
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When interpreting a statute, we begin by examining its plain language. “If
the statutory language is clear, our analysis ordinarily ends.” United States v.
Jackson, 248 F.3d 1028, 1030 (10th Cir.), cert. denied 122 S.Ct. 291 (2001). The
courts have “consistently held that whether a particular disposition counts as a
‘conviction’ in the context of a federal statute is a matter of federal
determination.” United States v. Cuevas, 75 F.3d 778, 780 (1st Cir. 1996). See
also Wilson v. I.N.S., 43 F.3d 211, 214-15 (5th Cir. 1995) (in absence of plain
language to the contrary, federal law governs application and definitions applied
in Congressional statutes); White v. I.N.S., 17 F.3d 475, 479 (1st Cir. 1994)
(federal law defines term “conviction” as used in immigration context).
Mr. Zamudio’s plea in abeyance satisfies the definition of conviction laid
out in 8 U.S.C. § 1101(a)(48)(A).
The term “conviction” means, with respect to an alien, a formal
judgment of guilt of the alien entered by a court or, if adjudication of
guilt has been withheld, where (i) a judge or jury has found the alien
guilty or the alien has entered a plea of guilty or nolo contendere or
has admitted sufficient facts to warrant a finding of guilt, and (ii) the
judge has ordered some form of punishment, penalty, or restraint on
the alien’s liberty to be imposed.
8 U.S.C. § 1101(a)(48)(A) (emphasis added). Mr. Zamudio met the statutory
requirement when he entered a guilty plea to the Utah charge of distribution of
marijuana and the district court imposed a penalty in the form of a $1,000 fine.
His Utah plea in abeyance thus squarely falls within § 1101(a)(48)(A)’s definition
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of conviction. 6
Mr. Zamudio’s Utah conviction also fulfills the aggravated felony
requirement of 8 U.S.C. § 1326(b)(2) and U.S.S.G. § 2L1.2(b)(1)(A). “As used in
§ 1326(b)(2), the term ‘aggravated felony’ is defined as meaning, inter alia,
‘illicit trafficking in a controlled substance . . . .’” Valenzuela-Escalante, 130
F.3d at 945-46 (quoting 8 U.S.C. § 1101(a)(43)(B)). Mr. Zamudio’s Utah
conviction was for distribution of marijuana, which is a controlled substance
under 21 U.S.C. § 812, schedule I(c)(10). His plea in abeyance therefore fully
qualifies as a conviction for an aggravated felony under 8 U.S.C. § 1326(b)(2)
and U.S.S.G. § 2L1.2(b)(1)(A), and the district court erred by not subjecting his
illegal re-entry sentence to a sixteen-level enhancement under the sentencing
6
We reject Mr. Zamudio’s contention that the government waived this
argument by not raising it below. He posits the government asserted a different
position to the district court in regard to his sentence and the Utah offense. We
disagree. Throughout these proceedings the issue consistently has been whether
Mr. Zamudio’s plea in abeyance constitutes a conviction for the purposes of a
sentencing enhancement. In its Memorandum in Support for its Motion to
Reconsider, the government noted Mr. Zamudio’s plea in abeyance satisfied 8
U.S.C. § 1101(a)(48)(A) in part because he had “pled to sufficient facts to
warrant a finding of guilt of an aggravated felony.” Aplt. appendix at 27. On
appeal, the government argues § 1101(a)(48)(A) was satisfied because Mr.
Zamudio entered a plea of guilty. Aplt. br. at 8. The government has not waived
its argument that Mr. Zamudio’s plea in abeyance constitutes a conviction under 8
U.S.C. § 1101(a)(48)(A) by using slightly different language on appeal than it
used in the district court.
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guidelines. 7
Appellant’s motion to file supplemental appendices is GRANTED. We
REVERSE the district court and remand for resentencing in accordance with this
opinion.
We note that upon remand and resentencing, the district court is not
7
necessarily required to apply the full sixteen-level enhancement. “Aggravated
felonies that trigger the adjustment from subsection (b)(1)(A) vary widely . . .
[and in some instances] a downward departure may be warranted based on the
seriousness of the aggravated felony.” U.S.S.G. § 2L1.2, application note 5.
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