FILED
United States Court of Appeals
Tenth Circuit
October 21, 2010
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 09-1570
CARLOS HUYOA-JIMENEZ, a.k.a.
Uriel Ayala-Guzman,
Defendant-Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
(D.C. No. 1:09-CR-00222-PAB-1)
Paul Farley, Assistant United States Attorney (David M. Gaouette, United States
Attorney, with him on the brief), Denver, Colorado, for Plaintiff-Appellee.
Kathleen Lord, Assistant Federal Public Defender (Raymond P. Moore, Federal
Public Defender, with her on the brief), Denver, Colorado, for Defendant-Appellant.
Before MURPHY, BALDOCK, and BRORBY, Circuit Judges.
BALDOCK, Circuit Judge.
In this case, Defendant Carlos Huyoa-Jimenez illegally reentered the United
States after he was deported for committing a felony drug trafficking offense for
which he received an entirely suspended sentence. 1 This appeal requires us to decide
whether, when sentencing such a defendant, a district court should apply a twelve-
level enhancement for prior felony drug trafficking convictions “for which the
sentence imposed was 13 months or less” under U.S.S.G. § 2L1.2(b)(1)(B) or an
eight-level enhancement for aggravated felonies under § 2L1.2(b)(1)(C). Taking
jurisdiction under 28 U.S.C. § 1291, we conclude that when a defendant has received
an entirely suspended sentence for a prior felony drug trafficking offense, no
sentence is “imposed,” and the district court should apply the eight-level
enhancement. We therefore remand this case to the district court with instructions
to vacate Defendant’s sentence and re-sentence him in accordance with this opinion.
I.
In 2001, Defendant Carlos Huyoa-Jimenez, a Mexican citizen, pled guilty in
Idaho state court to possession of a controlled substance with intent to distribute.
He received an entirely suspended one- to four-year sentence of imprisonment and
four years of unsupervised probation for this offense and was deported to Mexico
three days later. Defendant reentered the United States without authorization and
was arrested on state charges in Colorado in 2008. After Defendant pled guilty to
1
As the district court explained, for Defendant’s previous felony drug
trafficking offense, “he was sentenced to one to four years’ imprisonment, but that
sentence was suspended and he was instead sentenced to four years of unsupervised
probation. So he was not sentenced to any time on that particular case at all.” R.
Vol. 2, Pt. 2 at 14.
2
those charges and began serving time in Colorado, the federal government indicted
Defendant on one count of illegal reentry after deportation subsequent to an
aggravated felony conviction in violation of 8 U.S.C. § 1326(a) and (b)(2).
Defendant entered a guilty plea to this offense. Among the disputed factors included
in the plea agreement’s calculation of Defendant’s sentencing range was the twelve-
level increase under § 2L1.2(b)(1)(B) for Defendant’s prior felony drug trafficking
conviction.
The relevant portions of U.S.S.G. § 2L1.2 provide: “If the defendant
previously was deported, or unlawfully remained in the United States, after . . . (B)
a conviction for a felony drug trafficking offense for which the sentence imposed was
13 months or less, increase by 12 levels; (C) a conviction for an aggravated felony,
increase by 8 levels . . . .” U.S. Sentencing Guidelines Manual § 2L1.2(B)–(C)
(2008) (emphasis added). The Application Notes to this provision, added in a 2003
amendment, state:
“Sentence imposed” has the meaning given the term “sentence of
imprisonment” in Application Note 2 and subsection (b) of § 4A1.2
(Definitions and Instructions for Computing Criminal History), without
regard to the date of conviction. The length of the sentence imposed
includes any term of imprisonment given upon revocation of probation,
parole, or supervised release.
Id. § 2L1.2 cmt. n.1(B)(vii) (2008). Section 4A1.2(b)(1), in turn, provides: “The
term ‘sentence of imprisonment’ means a sentence of incarceration and refers to the
maximum sentence imposed.” The application notes to § 4A1.2 state: “To qualify
3
as a sentence of imprisonment, the defendant must have actually served a period of
imprisonment on such sentence . . . .” Id. § 4A1.2 cmt. n.2 (2008).
Defendant objected, both to the presentence report and at sentencing, to the
application of the twelve-level enhancement under U.S.S.G. § 2L1.2(b)(1)(B). He
argued, as he does on appeal, that the twelve-level enhancement should only be
applied to defendants who served an actual period of imprisonment or incarceration
for their prior felony drug trafficking convictions. Thus, he says, a defendant
convicted of a felony drug trafficking offense who served no time of incarceration
for that offense should receive the eight-level enhancement for aggravated felonies.
The Government contended, as it does on appeal, that an entirely suspended sentence
is a sentence of zero months of imprisonment. Reasoning that zero months is less
than thirteen months, the Government argues this means Defendant should receive
the twelve-level enhancement even though he never served any term of imprisonment
for his felony drug trafficking offense.
At sentencing, the district court noted the interpretation of this section was a
“close question.” The court found that an ambiguity existed “within 2L1.2(b)(1) as
to whether a[n entirely suspended] conviction such as [Defendant] here has . . . falls
within subsection (A), (B), or (C).” R. Vol. 2, Pt. 2 at 16. Following the
Government’s reasoning, the district court looked to the Commission’s 2001 reason
for amendment to determine its intent in creating the graduated scheme of
enhancements. Before the 2001 amendment, all defendants with prior aggravated
4
felony convictions received a sixteen-level enhancement. In 2001, the Commission
amended § 2L1.2(b)(1) to include the present scheme of enhancements in an effort
to make sentences more fair. In its reason for amendment, the Commission
explained:
This amendment responds to concerns . . . that § 2L1.2
(Unlawfully Entering or Remaining in the United States) sometimes
results in disproportionate penalties because of the 16-level
enhancement provided in the guideline for a prior conviction for an
aggravated felony. The disproportionate penalties result because the
breadth of the definition of “aggravated felony” provided in 8 U.S.C.
§ 1101(a)(43), which is incorporated into the guideline by reference,
means that a defendant who previously was convicted of murder, for
example, receives the same 16-level enhancement as a defendant
previously convicted of simple assault. . . .
This amendment responds to these concerns by providing a more
graduated sentencing enhancement of between 8 levels and 16 levels,
depending on the seriousness of the prior aggravated felony and the
dangerousness of the defendant. In doing so, the Commission
determined that the 16-level enhancement is warranted if the defendant
previously was deported, or unlawfully remained in the United States,
after a conviction for certain serious offenses, specifically, a drug
trafficking offense for which the sentence imposed exceeded 13
months . . . . Other felony drug trafficking offenses will receive a 12-
level enhancement. All other aggravated felony offenses will receive
an 8-level enhancement.
Id. (emphasis added). The Government argued and the district court agreed that this
text showed the Commission intended to distinguish between felony drug trafficking
offenses with sentences greater than thirteen months, which merit the sixteen-level
enhancement, and felony drug trafficking offenses with sentences of thirteen months
or less, which merit the twelve-level enhancement. The court reasoned that an
entirely suspended sentence of zero months’ imprisonment was less than thirteen
5
months and applied the twelve-level enhancement. Accordingly, the court sentenced
Defendant to thirty months’ imprisonment and a three-year term of supervised
release, to run consecutively with his Colorado sentence. 2 Defendant appealed his
sentence, arguing the district court should have applied the eight-level enhancement.
II.
We review de novo the district court’s interpretation of the Sentencing
Guidelines. United States v. Ford, 613 F.3d 1263, 1268 (10th Cir. 2010). The
Government urges us to affirm the district court’s conclusion that the twelve-level
enhancement applies to Defendant because zero months is less than thirteen months
and because, in the Government’s view, the Commission intended all defendants with
felony drug trafficking convictions to receive at least the twelve-level enhancement
under § 2L1.2(b)(1)(B). We are not persuaded by this reasoning. The Government
would have us interpret the relevant provisions so literally as to ignore the “sentence
imposed” language in § 2L1.2(b)(1)(B). We cannot disregard the text of
§ 2L1.2(b)(1)(B) itself in favor of the Government’s view of the Commission’s
purpose in adding the text. Though a proper interpretation of § 2L1.2(b)(1) requires
us to read multiple sections of the guidelines as tax lawyers read multiple sections
2
Using the twelve-level enhancement, the district court calculated Defendant’s
offense level of seventeen and criminal history category of III. This resulted in a
sentencing range of thirty-seven to forty-six months. Had the district court instead
used the eight-level enhancement, Defendant’s offense level would have been
thirteen, resulting in a sentencing range of eighteen to twenty-four months.
6
of the Internal Revenue Code to arrive at the proper meaning of the language, we are
convinced Defendant has the better argument. 3 Section 2L1.2(b)(1)(B) specifies that
district courts should apply the twelve-level enhancement when a defendant has “a
conviction for a felony drug trafficking offense for which the sentence imposed was
thirteen months or less.” Note 1(B)(vii) to § 2L1.2 provides that “‘sentence
imposed’ has the meaning given the term ‘sentence of imprisonment’ in Application
Note 2 and subsection (b) of § 4A1.2 . . . .” Section 4A1.2(b) states that “[t]he term
‘sentence of imprisonment’ means a sentence of incarceration and refers to the
maximum sentence imposed.” Application Note to § 4A1.2 explains: “To qualify
as a sentence of imprisonment, the defendant must have actually served a period of
imprisonment on such sentence.” (emphasis added). Reading these provisions
together, one after the other, as the Commission explicitly instructed, we conclude
that a defendant whose entire sentence was suspended and who, therefore, has not
“actually served a period of imprisonment” has had no “sentence imposed” that could
trigger the application of the twelve-level enhancement under § 2L1.2(b)(1)(B).
Instead, the eight-level enhancement for aggravated felonies applies.
3
At oral argument, the parties discussed the applicability of the rule of lenity
to this case. See United States v. Metzener, 584 F.3d 928, 934–35 (10th Cir. 2009)
(explaining that the rule of lenity instructs courts to interpret ambiguous criminal
statutes in favor of defendants). Though our analysis of this question requires a
careful reading of multiple guidelines sections, we do not think the Sentencing
Guidelines are so ambiguous as to require the application of the rule of lenity to
resolve this appeal, regardless of whether Defendant preserved that argument.
7
We are not alone in reaching this conclusion. Both the Fifth and the Ninth
Circuits have considered whether to apply an eight- or twelve-level enhancement to
a defendant with a prior felony drug trafficking conviction whose entire sentence was
suspended. Both reasoned that an entirely suspended sentence is not a “sentence
imposed” and concluded the eight-level enhancement under § 2L1.2(b)(1)(C) should
apply. United States v. Ortuno-Santana, 372 F. App’x 533 (5th Cir. 2010)
(unpublished) (concluding it is plain error for a district court to apply the twelve-
level enhancement to a defendant who received only probation for his prior felony
drug trafficking conviction); United States v. Rodriguez-Parra, 581 F.3d 227, 229–30
(5th Cir. 2009) (concluding it was error but not plain error to apply a twelve-level
enhancement to a defendant whose entire sentence was suspended); United States v.
Alvarez-Hernandez, 478 F.3d 1060, 1066–67 (9th Cir. 2007) (concluding a defendant
whose entire sentence for a prior drug trafficking conviction was suspended should
receive the eight-level enhancement). 4
Nonetheless, the Government urges us to follow the Second Circuit’s decision
in United States v. Mullings, 330 F.3d 123 (2d Cir. 2003). But we have reason to
4
District courts in our circuit have reached differing conclusions on this
matter. In United States v. Rodriguez-Fuentes, 2006 WL 1304907 (D.N.M. 2006)
(unpublished) and United States v. Cruz-Hernandez, 2007 WL 709045 (D.N.M.
2007), the district court of New Mexico applied the eight-level enhancement for prior
aggravated felony convictions to defendants whose entire prior sentences had been
probated or suspended. On the other hand, the Colorado district court in the instant
case concluded the twelve-level enhancement applied.
8
think the Second Circuit’s rationale is no longer persuasive authority for the issue
presented in this case. In Mullings, the court reasoned that a sentence of zero
months is clearly less than thirteen and that the Commission’s reason for the 2001
amendment revealed that all felony drug trafficking offenses should receive at least
the twelve-level enhancement. Id. at 125; see also U.S. Sentencing Guidelines
Manual app. C, vol. II at 218 (“[T]he 16-level enhancement is warranted if the
defendant previously was deported . . . after a conviction for . . . a drug trafficking
offense for which the sentence imposed exceeded 13 months . . . . Other felony drug
trafficking offenses will receive a 12-level enhancement.”). Accordingly, the court
held that “a non-custodial sentence requiring the [defendant] to pay only a monetary
fine constitutes ‘a conviction . . . for which the sentence imposed was 13 months or
less’ pursuant to U.S.S.G. § 2L1.2(b)(1)(B) . . .” and concluded the defendant should
receive a twelve-level enhancement. Id. However, the Second Circuit issued its
Mullings decision before the Sentencing Commission issued its 2003 amendments
adding the cross-reference between § 2L1.2(b) and § 4A1.2 and so had to decide the
case without the benefit of the Commission’s definition of “sentence imposed.” In
contrast, we, like the Fifth and Ninth Circuits, decide this issue with the
Commission’s express definition of “sentence imposed.” Thus, we can resolve this
appeal by referring to the text of the relevant guidelines provisions, rather than “what
the Sentencing Commission might have been thinking.” Alvarez-Hernandez, 478
9
F.3d at 1067. 5
Thus, we hold that a defendant who received an entirely suspended sentence
for a prior felony drug trafficking conviction should receive an eight-level
enhancement under § 2L1.2(b)(1)(C). We remand this case to the district court with
instructions to vacate Defendant’s sentence and re-sentence him in a manner
consistent with this opinion.
5
Notably, the Ninth Circuit originally cited Mullings with approval but
rejected that reasoning when interpreting § 2L1.2(b)(1) after the Commission enacted
the 2003 amendments. Compare United States v. Hernandez-Valdovinos, 352 F.3d
1243, 1249 (9th Cir. 2003) (citing Mullings in dicta for the proposition that if the
twelve-level enhancement applied where a defendant received no sentence of
imprisonment, it would apply where the defendant served two months’ imprisonment
as a condition of probation) with Alvarez-Hernandez, 478 F.3d at 1065–67
(concluding that when the Commission added the cross-references defining “sentence
imposed,” with knowledge that circuit courts had held that a defendant received a
“sentence of imprisonment” only if he served time in custody, the Commission
intended to make the twelve-level enhancement applicable only to defendants who
served “actual jail time” for their felony drug trafficking convictions).
10