F I L E D
United States Court of Appeals
Tenth Circuit
PU BL ISH
January 3, 2007
UNITED STATES CO URT O F APPEALS Elisabeth A. Shumaker
Clerk of Court
FO R TH E TENTH CIRCUIT
UNITED STATES OF AM ERICA,
Plaintiff-Appellee,
v. No. 05-3243
JUAN M ARTINEZ-M ACIAS,
Defendant-Appellant.
A PPE AL FR OM T HE UNITED STATES DISTRICT COURT
FOR T HE DISTRICT OF KANSAS
(D.C. No. 04-CR-20171-CM )
M elissa Harrison, Assistant Federal Public Defender for the D istrict of K ansas,
(David J. Phillips, Federal Public Defender, with her on the briefs) Kansas City,
Kansas, for Defendant-Appellant.
M ichael G. Christensen, Assistant United States Attorney, (Eric F. M elgren,
United States Attorney, with him on the brief) Kansas City, Kansas, for Plaintiff-
Appellee.
Before M U RPH Y, M cKA Y, and HOLLOW AY, Circuit Judges.
M cK A Y, Circuit Judge.
Defendant Juan M artinez-M acias initially was deported from the United
States to M exico on June 25, 1999, following his conviction, pursuant to a plea
bargain, in W yandotte County District Court for possession of cocaine, a felony
under Kansas state law. He illegally reentered the United States on or about
February 15, 2000, and was arrested nearly five years later by Kansas City police
responding to a domestic battery claim. As a result of this arrest, defendant was
charged and pleaded guilty to a one-count indictment for illegally reentering the
United States after deportation for an aggravated felony, in violation of 8 U.S.C.
§§ 1326(a) and (b)(2). The district court sentenced him to twenty-one months’
imprisonment and two years of supervised release. This sentence was based in
part on a pre-sentence report recommendation that the court apply an eight-level
“aggravated felony” enhancement under United States Sentencing Guideline §
2L1.2(b)(1)(C).
Defendant argues on appeal that the advisory nature of the Sentencing
Guidelines following United States v. Booker, 543 U.S. 220 (2005), and the
recommended method of statutory interpretation implied in Leocal v. Ashcroft,
543 U.S. 1 (2004), warrant reversal of this court’s interpretation of §
2L1.2(b)(1)(C) in United States v. Castro-Rocha, 323 F.3d 846 (10th Cir. 2003).
Accordingly, Defendant contends his eight-level aggravated felony enhancement
is unjustified and resulted in an unreasonable sentence. Defendant also argues
that sentencing disparities among similarly situated defendants created by “fast
track” sentencing programs renders his sentence unreasonable.
W e review a district court’s interpretation of the Sentencing Guidelines de
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novo. United States v. Holbert, 285 F.3d 1257, 1259 (10th Cir. 2002). The crime
of illegal reentry after deportation for an aggravated felony is codified at 18
U.S.C. § 1326(b)(2), and Sentencing Guideline § 2L1.2(b)(1)(C) suggests adding
an eight-level enhancement where deportation occurs after a conviction for an
aggravated felony. However, the definition of “aggravated felony” provided in
Application Note 3 to § 2L1.2 begins an almost comical series of statutory cross-
references: “For purposes of subsection (b)(1)(C), ‘aggravated felony’ has the
meaning given that term in section 101(a)(43) of the Immigration and Nationality
Act [(“INA”)] (8 U.S.C. § 1101(a)(43)), without regard to the date of conviction
for the aggravated felony.” Under 8 U.S.C. § 1101, which provides the
definitions applicable to the IN A, “aggravated felony” is defined in pertinent part
as “illicit trafficking in a controlled substance . . . including a drug trafficking
crime (as defined in section 924(c) of Title 18).” 8 U.S.C. § 1101(a)(43)(B).
Turning to 18 U.S.C. § 924(c), we find that “the term ‘drug trafficking crime’
means any felony punishable under the Controlled Substances Act [(“CSA ”)] (21
U.S.C. 801 et seq.).” Interpreting this “rather confusing maze of statutory cross-
references” in order to “decipher[] what the term ‘aggravated felony’” means in
the Sentencing Guideline context, United States v. Palacios-Suarez, 418 F.3d 692,
695 (6th Cir. 2005) (internal quotation omitted), would no doubt prove a daunting
task given the circuit split on this issue, see Lopez v. Gonzales, --- U.S. ---, No.
05-547, 2006 W L 3487031, at *3 n.3 (Dec. 5, 2006) (collecting circuit cases),
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even in light of this court’s previous pronouncements on the meaning of the term.
Fortunately, our route has been set for us by the Supreme Court in its
recent decision on this precise issue. See Gonzalez-Gonzalez v. Weber, --- F.3d --
-, 2006 W L 3791275, at *3 (10th Cir. Dec. 27, 2006) (applying Lopez). In Lopez
v. Gonzales, after noting that mere drug possession is not considered a felony
under the CSA, id. at *3 (citing 21 U.S.C. § 844(a)), and conducting a careful
analysis of the statutes at issue, the Supreme Court held that “a state offense
constitutes a ‘felony punishable under the Controlled Substances A ct’ only if it
proscribes conduct punishable as a felony under that federal law,” id. at *7. In so
holding, the Supreme Court expressly abrogated this court’s decision in United
States v. Cabrera-Sosa, 81 F.3d 998 (10th Cir. 1996) and effectively abrogated
our decision in Castro-Rocha. See Gonzalez-Gonzalez, 2006 W L 3791275, at *4
(recognizing abrogation of Cabrera-Sosa and the “cases that had followed it”).
Consequently, we must remand D efendant’s case to the district court for
resentencing consistent with the Supreme Court’s opinion in Lopez.
Our decision renders moot Defendant’s contention that the eight-level
enhancem ent is per se unreasonable. It does not, however, avoid D efendant’s
claim that a sentencing disparity was caused by the unavailability of a “fast track”
sentencing program in the District of Kansas. As this argument will survive
resentencing, we address it here.
W e recognize that certain judicial districts employ fast-track programs in
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order to expedite immigration offense cases, and that “[t]hese programs allow
defendants to obtain a downward departure in their offense level under the
[Sentencing Guidelines] in exchange for pleading guilty and waiving their rights
to file certain motions and to appeal.” United States v. M artinez-Trujillo, 468
F.3d 1266, 1267 (10th Cir. 2006). These programs are authorized by a provision
in the Prosecutorial Remedies and Other Tools to End the Exploitation of
Children Today Act of 2003 (the “PROTECT Act”). See Pub. L. No. 108-21, 117
Stat. 650 (codified in scattered sections of 18, 28, and 42 U.S.C.). In United
States v. M artinez-Trujillo, we held that although the unavailability of such
programs to some defendants creates disparate sentences, a disparity was not
“‘unwarranted’ within the meaning of § 3553(a)(6) when the disparity was
specifically authorized by Congress in the PROTECT Act.” 468 F.3d at 1268.
This decision is consistent with the position taken by several of our sister circuits,
see id. (citing recent decisions of the Second, Fourth, Fifth, Ninth and Eleventh
Circuits), and we see no reason to depart from Congress’s implicit acceptance of
this disparate result.
Accordingly, the matter is REM ANDED to the district court with
instructions to VAC ATE defendant’s sentence and resentence him consistent with
Lopez v. Gonzales, --- U.S. ---, No. 05-547, 2006 W L 3487031 (Dec. 5, 2006),
and this opinion.
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