Case: 09-50513 Document: 00511239356 Page: 1 Date Filed: 09/21/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
September 21, 2010
No. 09-50513
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee
v.
MARIA ISABEL GAMBOA-GARCIA,
Defendant - Appellant
Appeal from the United States District Court
for the Western District of Texas
Before JONES, Chief Judge, PRADO, Circuit Judge, and OZERDEN, District
Judge.*
EDITH H. JONES, Chief Judge:
Following her second conviction for illegal re-entry after deportation,
Maria Isabel Gamboa-Garcia appeals the application of an eight-level sentence
enhancement based on her first conviction for illegal re-entry after committing
an aggravated felony. Finding no error, we AFFIRM.
*
District Judge of the Southern District of Mississippi, sitting by designation.
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I. BACKGROUND
Gamboa has been convicted of three crimes: (1) accessory to murder in
2001; (2) illegal re-entry with an enhanced sentence for a previous aggravated
felony in 2004; and (3) the current conviction.
In 2001, Gamboa was illegally residing in Idaho when she was present
during a murder. Following the murder, Gamboa drove the getaway car, cleaned
the getaway car, gave the murderer money to aid his escape, and lied to police
about her knowledge of the crime. Later, she pled guilty and was convicted as
an accessory to first degree murder (the 2001 conviction).1
On June 10, 2004, Gamboa was deported to Mexico, but returned and was
arrested in Arizona only three months later. She pled guilty to illegal re-entry
and was convicted under 8 U.S.C. § 1326(a) (the 2004 conviction). This
conviction included an aggravated felony enhancement based on 8 U.S.C.
§ 1326(b)(2), which provides for additional penalties if an illegal immigrant
reenters the country “subsequent to a conviction for commission of an
aggravated felony.” According to the records of the district court in Arizona,
she pled guilty to an illegal reentry crime that specifically considered her
accessory to murder conviction as an aggravated felony. She was sentenced to
eight months in prison, two years of supervised release, and removed to Mexico
on January 18, 2007. She did not appeal.
On January 5, 2009, Gamboa was arrested in Texas and charged with
illegal re-entry under 8 U.S.C. § 1326(a). She pled guilty and the government
again sought enhanced penalties under § 1326(b)(2). Pursuant to U.S.S.G
1
Gamboa was convicted of violations under IDAHO CODE ANN .§§ 18-205, -206, -4001,
-4002, -4003 (2002).
2
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§ 2L1.2(b)(1)(C),2 the pre-sentence report increased Gamboa’s base offense
level by eight because she was removed from the United States to Mexico
on January 18, 2007, after her conviction on September 23, 2004, for the
aggravated felony offense of illegal re-entry. The PSR also contained Gamboa’s
2001 accessory to murder conviction.
The eight-level enhancement, combined with Gamboa’s other criminal
history, resulted in a total offense level of thirteen, with a recommended
sentence guideline range of twenty-four to thirty months. She was ultimately
sentenced to twenty-four months imprisonment, two years supervised release,
and a $100 special assessment.
Gamboa appeals, asserting that the eight-level enhancement was
inappropriately applied because she does not have a previous conviction for an
aggravated felony. Gamboa argues that the district court erred in holding that
her 2004 illegal re-entry conviction was an aggravated felony because her 2001
accessory to murder conviction was not an aggravated felony. Instead, the 2004
conviction should be considered simply a felony, which under U.S.S.G
§ 2L1.2(b)(1)(D) would have increased her current offense level by four.
II. ANALYSIS
We review the district court’s application of the sentencing guidelines
de novo. United States v. Fierro-Reyna, 466 F.3d 324, 326 (5th Cir. 2006). Under
U.S.S.G § 2L1.2(b)(1)(C), if the defendant was previously deported after “a
conviction for an aggravated felony,” her base offense level should “increase by
8 levels.” The relevant guideline incorporates the aggravated felony definition
2
U.S.S.G. § 2L1.2(b)(1)(C) provides an “increase by 8 levels” if “the defendant
previously was deported, or unlawfully remained in the United States after a conviction for
an aggravated felony.”
3
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under 8 U.S.C. § 1101(a)(43), which lists several crimes. Section 1101(a)(43)(O)
states:
an offense described in section 1325 (a) or 1326 of this title com-
mitted by an alien who was previously deported on the basis of a
conviction for an offense described in another subparagraph of this
paragraph;
Thus, there are two elements under § 1101(a)(43)(O): (a) a § 1326 violation and
(b) reentry after deportation based on another aggravated felony.
Here, Gamboa’s 2004 conviction was for a § 1326 violation and she was
deported in 2007. The 2004 conviction also constituted a violation of
§ 1326(b)(2), because she re-entered the country “subsequent to a conviction
for commission of an aggravated felony.” Under its plain language, the 2004
conviction is itself an aggravated felony under § 1101(a)(43)(O). Accordingly, the
district court applied the eight-level aggravated-felony enhancement.
Gamboa concedes that she was previously removed after committing an
offense under § 1326 in 2004. She argues, however, that her 2004 conviction
for illegal re-entry was not an aggravated felony because her underlying 2001
conviction for accessory to murder was not an aggravated felony.
A.
We first address Gamboa’s argument that the district court should have
reevaluated her 2004 conviction to determine whether the Arizona district court
correctly determined that her 2001 accessory to murder conviction was an
aggravated felony.
Based on the provisions just cited, Gamboa contends:3
3
Gamboa relies on one unpublished case, United States v. Martinez-Zamorano, 228 F.
App’x 497, 497-98 (5th Cir. 2007) (unpublished) (per curiam). In that case, this court
reevaluated a defendant’s previous conviction underlying an illegal re-entry offense because
4
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In other words, for an illegal reentry offense to qualify as an
aggravated felony, it must have been committed after the defendant
was deported on the basis of another aggravated felony set out in
8 U.S.C. § 1101(a)(43).
Gamboa does not have an aggravated-felony conviction. Other
than her prior illegal-reentry conviction, Gamboa has only one other
conviction, accessory after the fact in Idaho. The accessory after the
fact conviction is not an aggravated felony because it does not fit the
definitions in any subparagraph of § 1101(a)(43). (emphasis added.)
The government resists this argument. It notes that courts are generally
not required to reconsider prior convictions. See, e.g., Talbott v. Indiana,
226 F.3d 866, 870 (7th Cir. 2000) (“When enhancing the sentences of repeat
offenders, federal courts are entitled to treat prior convictions as what they are,
rather than what defendants say they should have been”). Allowing such
attacks would render § 1101(a)(43)(O) essentially meaningless by undermining
the finality of such convictions, requiring courts repeatedly to reconsider arcane
issues regarding prior convictions. Gamboa’s proffered interpretation makes no
sense, because defendants had a right to counsel in the prior convictions and
could avail themselves of professional advice and the appellate process to correct
any infirmities. The government’s argument is essentially that sentencing
under the guidelines is complicated, but it has not become a variation on the
movie G ROUNDHOG D AY (Columbia Pictures 1993).
We do not resolve this interpretive dispute, because Gamboa’s inherent
premise – that her Arizona conviction was not for an aggravated felony – is
wrong on its face. The judgment states that she pled guilty to “violating Title 8,
of an intervening Supreme Court decision that ruled the previous offense was not an
aggravated felony.
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U.S.C.§ 1326(a), Illegal Re-Entry after Deportation, with sentencing
enhancement pursuant to Title 8, U.S.C. § 1326(b)(2), a Class C Felony offense,
as charged in the Information.” Gamboa thus admitted that she had been
removed “subsequent to a conviction for commission of an aggravated felony.”
Her guilty plea expressly eliminates the interpretive question she raises here.
The district court did not err in relying on the District Court of Arizona’s
determination that Gamboa’s 2001 conviction was an aggravated felony, and it
properly characterized her 2004 illegal re-entry conviction based on the earlier
conviction.
B.
Even if we assume, arguendo, that the district court should have
reconsidered Gamboa’s 2001 conviction underlying her 2004 aggravated felony
conviction, the error is harmless because Gamboa’s accessory to first degree
murder conviction also qualifies as an aggravated felony under 8 U.S.C.
§ 1101(a)(43)(S).4
Section 1101(a)(43)(S) states that “an offense relating to obstruction of
justice . . . for which the term of imprisonment is at least one year” is an
aggravated felony. The statute does not define “obstruction of justice.” Alwan
v. Ashcroft, 388 F.3d 507, 514 (5th Cir. 2004). Gamboa argues that we should
use the construction of the phrase “obstruction of justice” that the Board of
Immigration Appeals (BIA) used in In re Espinoza-Gonzalez, 22 I. & N. Dec. 899
(BIA 1999). While we are not bound by the BIA’s interpretation, we have given
4
Gamboa argues that her accessory to murder conviction does not meet the definition
of aggravated felony as a “crime of violence” under § 1101(a)(43)(F). We need not address that
argument because the Government does not contend that her accessory to murder conviction
was a crime of violence.
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substantial deference to the BIA’s construction of § 1101(a)(43)(S). Alwan,
388 F.3d at 510, 514. We assume without deciding that it is acceptable to defer
to the BIA interpretation in the present context.
In Espinoza-Gonzalez, the BIA concluded that obstruction of justice crimes
include (1) “either active interference with proceedings of a tribunal or
investigation, or action or threat of action against those who would cooperate in
the process of justice,” and (2) a “specific intent to interfere with the process of
justice.” 22 I. & N. Dec. at 893. Further, the BIA reaffirmed that a conviction
under 18 U.S.C. § 3 for being an accessory after the fact constitutes an
obstruction of justice offense. Id. at 894-95.
According to 18 U.S.C. § 3, “Whoever, knowing that an offense against the
United States has been committed, receives, relieves, comforts or assists the
offender in order to hinder or prevent his apprehension, trial or punishment, is
an accessory after the fact.” The elements of accessory after the fact under
18 U.S.C. § 3 are essentially the same as those of the Idaho accessory statute
Gamboa was convicted of violating. Idaho Code Annotated § 18-205 provides:
All persons are accessories who, having knowledge that a felony has
been committed:
(1) Willfully withhold or conceal it from a peace officer, judge,
magistrate, grand jury or trial jury; or
(2) Harbor and protect a person who committed such felony
or who has been charged with or convicted thereof.
Both 18 U.S.C. § 3 and I.C. § 18-205 require that the defendant have knowledge
that an offense has been committed and take actions to assist the offender.
Gamboa’s accessory to murder conviction comfortably falls within the BIA’s
definition of “obstruction of justice.”
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Gamboa argues that her accessory offense did not involve active
interference and more closely resembles misprision of a felony, which the BIA
decided was not an obstruction of justice because “concealment of a crime is
qualitatively different from an affirmative action to hinder or prevent
apprehension.” Espinoza-Gonzalez, 22 I. & N. Dec. at 894. In support, Gamboa
claims that she was convicted as being the first type of accessory under I.C.
§ 18-205, one who knows a felony had been committed and willfully withholds
or conceals it from a peace officer.
Although the record does not specify which section of I.C. § 18-205 Gamboa
violated, the complaint to which she pled guilty does indicate that in addition to
concealing the murder by cleaning out the getaway car and lying to the police,
Gamboa harbored and protected the murderer by driving him to a different town
and giving him $500. These acts fall under the second part of I.C. § 18-205 and
constitute active interference within the BIA’s definition of obstruction of justice.
Therefore, Gamboa’s 2001 conviction for accessory to murder is an
aggravated felony under 8 U.S.C. § 1101(a)(43)(S), constituting an additional
reason why the 2004 aggravated felony conviction for illegal re-entry was
appropriate.
III. CONCLUSION
For the foregoing reasons, the district court is AFFIRMED.
8