United States v. Ruiz-Gea

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
AUG 19 2003
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,
v. No. 01-4242
ISAAC BARDO RUIZ-GEA,

Defendant-Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
(D.C. NO. 2:01-CR-209-ST)

Scott Keith Wilson, Assistant Federal Public Defender (Steven B. Killpack,
Federal Public Defender, with him on the briefs), Salt Lake City, Utah, for
Defendant-Appellant.

Diana Hagen, Assistant United States Attorney (Paul M. Warner, United States
Attorney, and Laurie J. Sartorio, Assistant United States Attorney, on the brief),
Salt Lake City, Utah, for Plaintiff-Appellee.

Before MURPHY , McWILLIAMS , and HARTZ , Circuit Judges.

HARTZ , Circuit Judge.

Defendant Isaac Bardo Ruiz-Gea appeals the sentence imposed following

his guilty plea to illegal reentry of a deported alien, in violation of 8 U.S.C.
§ 1326. The principal issue on appeal is the proper interpretation of a provision

in the United States Sentencing Guidelines relating to Defendant’s offense.

USSG § 2L1.2(b)(1)(A)(i), states: “If the defendant previously was deported, or

unlawfully remained in the United States, after . . . a conviction for a felony that

is . . . a drug trafficking offense for which the sentence imposed exceeded 13

months . . ., increase [the offense level] by 16 levels[.]” Defendant contends that

this provision does not apply to him because he did not receive a sentence

exceeding 13 months until his probation on a state drug–trafficking offense was

revoked following his unlawful reentry. He also contends that the district court

erred by adding one point to his criminal history score based on its finding that he

committed the reentry offense less than two years after his release from

confinement on the prior drug-trafficking conviction, see USSG § 4A1.1(e). We

exercise jurisdiction under 18 U.S.C. § 3742(a) and affirm.

I. BACKGROUND

In 1997 Defendant, a Mexican citizen, was convicted by a Utah state court

of attempted distribution of a controlled substance. He was sentenced on July 17,

1997, to imprisonment for 1 to 15 years, but the sentence was suspended, with the

court ordering him to serve 90 days in jail and placing him on probation for 36

months. Shortly thereafter he was released to the custody of the Immigration and

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Naturalization Service (INS). The INS deported him to Mexico on July 30, 1997,

and ordered him not to return.

At some point Defendant reentered the United States. He was arrested in

Utah in August 1998 for possession of a controlled substance, and again in

December 1998 for interfering with a lawful arrest. On June 20, 2000, the Utah

state court revoked his probation for the 1997 controlled-substance offense and

reimposed the original 1- to 15-year prison sentence. Defendant apparently

remained in state custody for 13 months. He was then released to the custody of

the United States for prosecution of the present case.

On April 11, 2001, Defendant was charged in a one-count indictment with

having been unlawfully “present and . . . found” in the United States following a

deportation. Defendant pleaded guilty to the indictment, and on November 7,

2001, was sentenced to 57 months’ imprisonment, to be followed by 36 months’

supervised release. In calculating the sentence under the 2001 edition of the

Sentencing Guidelines (which had become effective six days prior to sentencing

in this case), the district court determined that the sentence imposed for

Defendant’s 1997 controlled-substance conviction exceeded 13 months. It

therefore increased Defendant’s base offense level by 16 levels as mandated by

USSG § 2L1.2(b)(1)(A)(i). The court also added a criminal history point under

USSG § 4A1.1(e), based on its finding that Defendant committed the offense of

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illegal reentry within two years of his release from prison on the 1997 conviction.

Defendant now challenges those rulings.

II. DISCUSSION

A. Enhancement for prior conviction under § 2L1.2(b)(1)(A)(i)

Defendant contends that the district court erred in using his 1997

controlled-substance conviction to enhance his sentence under USSG

§ 2L1.2(b)(1)(A)(i). Section 2L1.2—entitled “Unlawfully Entering or Remaining

in the United States”—instructs the district court to increase a defendant’s base

offense level by 16 levels “[i]f the defendant previously was deported, or

unlawfully remained in the United States, after . . . a conviction for a felony that

is . . . a drug trafficking offense for which the sentence imposed exceeded 13

months[.]” USSG § 2L1.2(b)(1)(A)(i). By contrast, when a defendant is deported

after a drug-trafficking conviction “for which the sentence imposed was 13

months or less,” the offense level is increased by 12 levels. Id. § 2L1.2(b)(1)(B).

Application note 1(A)(iv) to the guideline states: “If all or any part of a sentence

of imprisonment was probated, suspended, deferred, or stayed, ‘sentence imposed’

refers only to the portion that was not probated, suspended, deferred, or stayed.”

Id. § 2L1.2, comment. (n.1(A)(iv)).

Defendant does not contest that his 1997 conviction was a “drug trafficking

offense.” But he argues that the “sentence imposed” for that conviction did not

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exceed 13 months because initially the 1- to 15-year prison term was suspended

and he was ordered to serve only 90 days in jail. Although he acknowledges that

the 1- to 15-year term was ultimately imposed when his probation was revoked in

June 2000, he contends that this is irrelevant under the guideline. He appears to

make two related arguments in support of this contention: (1) he construes

application note 1(A)(iv) to say that suspended sentences that are ultimately

imposed are not part of the “sentence imposed”; and (2) he contends that because

the 1- to 15-year sentence was imposed following his deportation, he was not

“deported . . . after . . . a conviction . . . for which the sentence imposed exceeded

13 months[,]” USSG § 2L1.2(b)(1)(A)(i) (emphasis added). Before addressing

these arguments, we must determine our standard of review.

1. Standard of review

Ordinarily, “[t]he district court’s interpretation of the sentencing guidelines

is a legal question subject to de novo review.” United States v. Castro-Rocha ,

323 F.3d 846, 848-49 (10th Cir. 2003). De novo review is appropriate, however,

only if the issue was raised below. Defendant contends that he raised below the

“functional equivalent” of his appellate arguments by arguing at sentencing that

the length of the sentence imposed for the 1997 conviction warranted a downward

departure under former application note 5 to § 2L1.2 of the 2000 edition of the

Sentencing Guidelines. Aplt.’s Opening Br. at 5. That application note allowed

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downward adjustments from the presumptive offense level set forth in § 2L1.2

upon the satisfaction of certain conditions, including that the term of

imprisonment imposed for the prior aggravated-felony conviction did not exceed

one year. See USSG § 2L1.2, comment. (n.5) (2000). But Defendant was

sentenced under the 2001 Guidelines—at the insistence of his trial counsel, who

successfully sought postponement of Defendant’s sentencing hearing until the

2001 Guidelines became effective—and those Guidelines contained a completely

rewritten version of § 2L1.2 and accompanying commentary. Defendant made no

argument addressed to the text of the 2001 version of § 2L1.2 and its new

application note 1(A)(iv). In any event, the only statement below that resembles

his contentions on appeal was his assertion, without argument, that his state

sentence was for only 90 days; he made no argument regarding the timing of the

probation revocation in relation to his deportation. His appellate arguments not

having been raised below, our review is only for plain error. See United States v.

Whitney , 229 F.3d 1296, 1308 (10th Cir. 2000).

To establish plain error, Defendant “must show: (1) an error, (2) that is

plain, which means clear or obvious under current law, and (3) that affect[s]

substantial rights. If these three elements are satisfied, then we may exercise

discretion to correct the error if it seriously affect[s] the fairness, integrity, or

public reputation of judicial proceedings.” Id. (internal quotation marks and

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citations omitted; alterations in the original). Although “basing a sentence on the

wrong guideline range constitutes a fundamental error affecting substantial rights

. . . , thereby satisfying the third prong of the plain error inquiry,” id. at 1308-09

(internal quotation marks omitted), Defendant still must show that “if there was

error, it was plain,” id. at 1309. Our standard of review settled, we now turn to

Defendant’s arguments.

2. What was the “sentence imposed”?

According to Defendant, under § 2L1.2(b)(1)(A)(i) and its commentary the

district court should have considered only the 90-day sentence originally imposed

for his 1997 drug-trafficking conviction, ignoring the fact that the suspended

sentence was subsequently imposed when he violated his probation. We disagree.

Section 2L1.2(b)(1)(A)(i) speaks of a “conviction . . . for which the

sentence imposed exceeded 13 months.” The sentence imposed after revocation is

imposed for the original conviction. As the Supreme Court recently explained: “A

suspended sentence is a prison term imposed for the offense of conviction. Once

the prison term is triggered, the defendant is incarcerated not for the probation

violation, but for the underlying offense.” Alabama v. Shelton , 535 U.S. 654, 662

(2002).

Application note 1(A)(iv), on which Defendant relies, does not address how

to treat an initially suspended sentence that is imposed upon the revocation of

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probation. It says only: “If all or any part of a sentence of imprisonment was

probated, suspended, deferred, or stayed, ‘sentence imposed’ refers only to the

portion that was not probated, suspended, deferred, or stayed.” USSG § 2L1.2,

comment. (n.1(A)(iv)). Upon revocation of probation, however, Defendant’s

sentence was no longer “suspended.”

We agree with the other two circuits that have discussed the matter. In

United States v. Compian-Torres , 320 F.3d 514, 515 (5th Cir. 2003), the Fifth

Circuit wrote: “The Commentary [ i.e., application note 1(A)(iv)] applies to

probated sentences, not probation revocations. . . . A sentence imposed on

revocation is actually ‘imposed’ as described in the Guideline and not ‘probated’

as excepted in the Commentary.” The court concluded, “An interpretation of

‘sentence imposed’ as ‘sentence originally imposed’ is untenable.” Id. Similarly,

in United States v. Moreno-Cisneros , 319 F.3d 456, 458 (9th Cir. 2003), the Ninth

Circuit said, “[T]he Guideline and application note . . . do not limit the sentence

imposed to the sentence as it was originally imposed, and we can see no reason to

infer such a limitation from the wording of the provisions.”

Moreover, including the sentence imposed upon revocation of probation as

part of the “sentence imposed” for the purposes of § 2L1.2(b)(1)(A)(i) is

consistent with how such sentences have been treated under other provisions of

§ 2L1.2. In United States v. Hidalgo-Macias , 300 F.3d 281 (2d Cir. 2002), the

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Second Circuit construed § 2L1.2(b)(1)(C), which mandates an eight-level

enhancement for defendants deported after a conviction for an “aggravated felony”

(defined to include certain offenses for which the “term of imprisonment [is] at

least one year,” 8 U.S.C. § 1101(a)(43)(G)). The defendant had initially been

sentenced to six months’ incarceration plus five years’ probation on a prior state-

court conviction; after he violated his probation, however, the probationary

sentence was revoked and he was sentenced to one year in jail. The defendant

argued that the sentence imposed upon revocation of his probation should not be

considered part of the sentence imposed for that crime, and that only the “initial

sentence imposed” should be considered under the guideline. Hidalgo-Macias ,

300 F.3d at 285. The Second Circuit rejected the argument, holding that “the

imposition of a sentence of imprisonment following revocation of probation is a

modification of the original sentence, and must be considered part of the ‘actual

sentence imposed’ for the original offense.” Id. The Ninth Circuit agrees. See

United States v. Jimenez , 258 F.3d 1120, 1125-26 (9th Cir. 2001).

We are not persuaded by Defendant’s policy argument that the 16-level

enhancement is reserved for only the most serious prior convictions, and “a later

probation revocation sentence is not relevant to the seriousness of th[e] offense.”

Aplt.’s Opening Br. at 10. As the Ninth Circuit stated:

[W]e can discern no basis for treating an original sentence of over
thirteen months incarceration as more serious than a sentence of over

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 thirteen months incarceration that consists of the original sentence
plus the result of the revocation of probation. A defendant who does
not abide by the terms of his probation has demonstrated that he
should not have been given probation in the first place.

Moreno-Cisneros , 319 F.3d at 458.

Finally, although not determinative, our interpretation of the guideline

provision is consistent with a clarifying amendment to § 2L1.2 that the

United States Sentencing Commission submitted to Congress on May 1, 2003.

Unless modified or rejected by Congress, the amendment will take effect on

November 1, 2003. The amendment would delete the current application note

1(A)(iv), and replace it with a new application note 1(B)(vii), to read:

‘Sentence of imprisonment’ has the meaning given that term in
Application Note 2 and subsection (b) of § 4A1.2 (Definitions and
Instructions for Computing Criminal History), without regard to the
date of the conviction. The length of the sentence of imprisonment
includes any term of imprisonment given upon revocation of
probation, parole, or supervised release.

Sentencing Guidelines for United States Courts, 68 Fed. Reg. 26,960-01, 26,974

(May 16, 2003) (emphasis added). The Sentencing Commission explained that its

“approach in clarifying this definition is consistent with the case law interpreting

the term and the use of the term in Chapter Four of the guidelines.” Id.

We conclude that the district court did not err when it considered the 1- to

15-year sentence imposed upon revocation of Defendant’s probation to be part of

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the “sentence imposed” for the 1997 drug-trafficking offense. Thus, there was no

plain error.

3. Timing of the imposition of sentence

Defendant also argues that he was not “deported . . . after . . . a conviction

for a felony that is . . . a drug-trafficking offense for which the sentence imposed

exceeded 13 months[.]” USSG § 2L1.2(b)(1)(A)(i) (emphasis added). He relies

on the fact that the 1- to 15-year sentence for his 1997 drug-trafficking conviction

was not imposed until his probation was revoked in June 2000, after his

deportation. According to Defendant:

The plain language of the guideline refers to a conviction and
sentence which was imposed prior to the deportation underlying the
re-entry offense, and the imposition of a longer sentence based on a
probation violation should not be considered. By explicitly limiting
application of § 2L1.2(b)(1)(A) to re-entry following a deportation
which takes place “after” a sentence longer than 13 months, this
guideline, by its terms, does not apply when the sentence of over 13
months is only imposed after the re-entry offense has taken place.
[Defendant] was not deported “after” the imposition of the longer
sentence, and § 2L1.2(b)(1)(A) therefore does not apply to him.

Aplt.’s Opening Br. at 7-8.

Defendant’s argument is based upon a plausible reading of the guideline.

But because Defendant did not raise this argument below, we can grant him relief

only if the sentencing error was plain—that is, if the error was “clear or obvious

under current law.” Whitney , 229 F.3d at 1308 (internal quotation marks omitted).

“An error is clear and obvious when it is contrary to well-settled law.” Id. at

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1309. In general, for an error to be contrary to well-settled law, either the

Supreme Court or this court must have addressed the issue. See id. (finding no

plain error in interpretation of guideline provision when neither Supreme Court

nor Tenth Circuit had directly addressed the issue). The absence of such precedent

will not, however, prevent a finding of plain error if the district court’s

interpretation was “clearly erroneous.” See United States v. Brown , 316 F.3d

1151, 1158 (10th Cir. 2003) (internal quotation marks omitted) (the district court’s

error was “plain” when guideline “clearly and obviously” was limited to a single

interpretation, despite the absence of circuit precedent).

There is no Supreme Court or Tenth Circuit precedent addressing

enhancements under the present version of § 2L1.2 on facts similar to those

presented here— i.e. , when an initially suspended sentence is reinstated after

deportation and illegal reentry. Nor have we found such precedent in other

circuits. But cf. United States v. Guzman-Bera , 216 F.3d 1019, 1021 (11th Cir.

2000) (per curiam) (under prior version of § 2L1.2, aggravated-felony

enhancement did not apply when defendant was initially sentenced to probation

(without a suspended sentence), because subsequent revocation and imposition of

prison term did not occur until after defendant’s deportation and illegal reentry);

Jimenez , 258 F.3d at 1125-26 (dictum to same effect)

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 In our view, Defendant’s reading of § 2L1.2(b)(1)(A)(i) is not compelled.

First, the provision speaks of deportation “after . . . a conviction ,” not “after

imposition of sentence .” Second, it is not immediately obvious that the purpose of

the enhancement would be undermined by applying it in the circumstances of this

case. The provision derives from 8 U.S.C. § 1326(b)(2), which increases the

penalty for illegal reentry when the alien had been convicted of an aggravated

felony prior to deportation. There is some doubt regarding which interpretation of

§ 2L1.2(b)(1)(A)(i) would best serve the purposes of § 1326(b)(2). Third, the

guideline provides for the enhancement if the defendant “was deported, or

unlawfully remained in the United States , after . . . a conviction for a felony . . . .”

USSG § 2L1.2(b)(1)(A)(i) (emphasis added). Defendant has presented no

argument regarding how to construe the “unlawfully remained” language or its

applicability here.

A careful examination of the context and purposes of § 2L1.2 might

convince us that Defendant’s interpretation is the correct one. What we cannot

say, however, is that the district court was clearly wrong. See Whitney , 229 F.3d

at 1309 (finding error, if any, not “plain,” even though Tenth Circuit in dictum,

Seventh Circuit, and Black’s Law Dictionary indicated that guideline should be

construed in a manner contrary to district court’s application of guideline).

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 Defendant urges us to adopt his interpretation by applying the rule of lenity,

which instructs courts to interpret ambiguous criminal statutes favorably to the

accused. See United States v. Gay , 240 F.3d 1222, 1232 (10th Cir. 2001). But the

rule of lenity is applied only when all other techniques for statutory construction

leave the court in equipoise. Muscarello v. United States , 524 U.S. 125, 138

(1998) ( “The rule of lenity applies only if, after seizing everything from which aid

can be derived, . . . we can make no more than a guess as to what Congress

intended.” (internal quotation marks omitted; ellipses in the original)). When the

choice between two possible meanings of a statute is so open to debate that the

rule of lenity comes into play, one can hardly say that either interpretation is

plainly wrong. We see no role for the rule of lenity in determining whether there

was plain error below.

We hold that the district court did not plainly err when it enhanced

Defendant’s sentence 16 levels under USSG § 2L1.2(b)(1)(A)(i).

B. Enhancement under USSG § 4A1.1(e)

Defendant argues that the district court erred in adding one point to his

criminal history score under USSG § 4A1.1(e), which instructs the court to add

one or two criminal history points “if the defendant committed the instant offense

less than two years after release from imprisonment on a sentence [of at least 60

days].” USSG § 4A1.1(e) (emphasis added). The district court added one point

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under this subsection based on its finding that Defendant committed the reentry

offense within two years of his release from prison for the 1997 state drug-

trafficking offense. (The district court assessed one criminal history point rather

than two because it had previously added two points to Defendant’s criminal

history score under § 4A1.1(d), for committing the offense while on probation.

See § 4A1.1(e) (“If 2 points are added for item (d), add only 1 point for this

item.”).) Defendant contends that this finding was clearly erroneous. See

United States v. McClatchey , 316 F.3d 1122, 1128 (10th Cir. 2003) (sentencing

court’s fact findings are reviewed for clear error). We disagree.

Defendant was convicted of attempted distribution of a controlled substance,

sentenced for that crime on July 17, 1997, and deported to Mexico on July 30,

1997. Thus, to properly assess a criminal history point under § 4A1.1(e), the

district court had to find that Defendant committed the crime of unlawful reentry

by July 1999, two years after his “release from imprisonment.”

According to the indictment to which Defendant pleaded guilty, Defendant

was unlawfully “found” in the United States “[o]n or about March 5, 2001,” in

violation of 8 U.S.C. § 1326. R., Vol. I, Doc 1, at 1. Although the offense of

illegal reentry may have been completed on that date, see United States v. Rosales-

Garay , 283 F.3d 1200, 1202-03 (10th Cir. 2002), the district court was not

foreclosed from finding that Defendant’s commission of the offense began at an

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earlier point. “[A] previously deported alien who illegally enters and remains in

the United States can violate the statute at three different points in time, namely,

when the alien (1) ‘enters,’ (2) ‘attempts to enter,’ or (3) is at any time ‘found in’

the United States.” Id. at 1202. In the case of a surreptitious reentry like

Defendant’s, “the ‘found in’ offense is first committed at the time of the reentry

and continues to the time when the defendant is arrested for the offense.”

United States v. Lopez-Flores , 275 F.3d 661, 663 (7th Cir. 2001) (collecting

cases); accord United States v. Mendez-Cruz , 329 F.3d. 885, 889 (D.C. Cir. 2003).

Moreover, the guideline commentary states that criminal history points should be

added under § 4A1.1(e) “if the defendant committed any part of the instant offense

(i.e. , any relevant conduct) less than two years following release from

confinement” for a countable prior offense. USSG § 4A1.1, comment. (n.5)

(emphasis added). Reentry prior to being “found” clearly constituted a “part” of

Defendant’s offense.

The record contains ample evidence to support the district court’s finding

that Defendant reentered the United States within two years of July 1997. The

Presentence Report (PSR) shows that Defendant was arrested twice in Utah in

1998: once on drug charges on August 21, 1998, and once for interfering with a

lawful arrest on December 13, 1998. Defendant does not dispute that these arrests

occurred; nor does he assert that he left the United States and then reentered after

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these arrests. Based on the facts stated in the PSR, the district court found that the

evidence was “overwhelming” that Defendant committed his offense within two

years of his release from confinement for his July 1997 drug-trafficking

conviction. R., Vol. III, at 8. Of course, the court was not required to find that

the evidence was overwhelming; it needed only to be convinced by the

preponderance of the evidence. See United States v. Yates , 22 F.3d 981, 989 (10th

Cir. 1994) (contested facts at sentencing need only be established by

preponderance of the evidence). The district court’s finding was not clearly

erroneous. We therefore conclude that it properly added one point to Defendant’s

criminal history under § 4A1.1(e).

III. CONCLUSION

We AFFIRM the judgment of the district court.

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United States v. Ruiz-Gea , No. 01-4242

McWilliams , Judge, Dissenting.

There apparently is no binding 10th Circuit authority on the primary issue in

this case. Hence, we are writing on a “clean slate,” so to speak. I am simply not in

accord with the result reached in United States v. Compian-Torres , 320 F.3d 514

(5th Cir. 2003) or in United States v. Moreno-Cisneros , 319 F.3d 456 (9th Cir.

2003). I am in complete accord with Judge Fletcher’s dissent in Moreno-Cisneros .

My view on this matter is well summarized in the final paragraph of Judge

Fletcher’s dissent in Moreno-Cisneros, 319 F.3d at 464, where he spoke as

follows:

“This is (or should be) an easy case. The amended Guideline, Sec.

2L1.2(b)(1) contains a new phrase, “sentence imposed,” that is

carefully defined in Application Note 1(A)(iv). The phrase, as

defined in the Note, has a plain meaning that excludes suspended

sentences. I regret that the majority is unwilling to follow that plain

meaning.”