United States Court of Appeals
For the First Circuit
No. 99-2125
UNITED STATES OF AMERICA,
Appellant,
v.
JULIO CÉSAR LUNA-DÍAZ,
a/k/a FEDERICO ANTONIO SOTO-PENA
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Ernest C. Torres, U.S. District Judge]
Before
Torruella, Chief Circuit Judge,
Bownes, Senior Circuit Judge,
and Lipez, Circuit Judge.
Donald C. Lockhart, Assistant United States Attorney, Mary
E. Rogers, Assistant United States Attorney, with whom Margaret
E. Curran, United States Attorney, were on brief, for appellant.
Steven A. Lagana, with whom Lagana & Associates was on
brief, for appellee.
July 27, 2000
BOWNES, Senior Circuit Judge. This appeal by the
government challenges a sentence imposed by the United States
District Court for the District of Rhode Island (Torres, J.).
Defendant-Appellee Julio Cesar Luna-Díaz (hereafter "Luna") was
convicted of the offense of reentry after deportation. At
sentencing, the district court refused to apply a 16-level
enhancement for reentry by an alien who had previously been
deported following conviction of an aggravated felony. Finding
the district court's decision contrary to the language of the
guidelines, we reverse and remand for new sentencing.
I. Offense Facts
Although the law in this case is complex, the facts are
simple and undisputed. The events that occasioned this appeal
began in October of 1992, when Luna first entered the United
States illegally. In December of 1993, Luna pled guilty in
Massachusetts state court to four felony drug offenses related
to the manufacture and distribution of cocaine (hereafter "the
1993 conviction"). The state court imposed a two-year suspended
sentence. In May of 1995, Luna was deported. Luna again
entered the country illegally in September of 1997, but was
almost immediately apprehended and deported. In December of
1997, Luna again entered the country without permission from the
Attorney General. On March 26, 1998, he was arrested. Shortly
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after his arrest, Luna was indicted, and he pled guilty on
September 11, 1998 to a violation of 8 U.S.C. § 1326(a) (1994),
which bars deported aliens from returning without the express
permission of the Attorney General. The district court
sentenced him to eighteen months imprisonment.
II. Procedural Facts and Relevant Statutes
This case is governed by a somewhat complex web of
federal and state statutes. Section 1326(a), the statute under
which Luna was indicted, states in pertinent part:
Subject to subsection (b) of this section,
any alien who —
(1) has been denied admission, excluded,
deported, or removed . . . and thereafter
(2) enters . . . the United States, unless
. . . the Attorney General has expressly
consented . . .
shall be fined under Title 18, or imprisoned
not more than 2 years, or both.
Section 1326(b) provides that:
Notwithstanding subsection (a) of this
section, in the case of any alien described
in such subsection — . . .
(2) whose removal was subsequent to a
conviction for commission of an aggravated
felony, such alien shall be fined under
[Title 18], imprisoned not more than 20
years, or both . . . .
United States Sentencing Guidelines Manual (U.S.S.G.) § 2L1.2 is
the relevant guideline provision for violations of § 1326.
Section 2L1.2 sets a base offense level of 8. Subsection (b) of
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§ 2L1.2 provides for enhancements based on specific offense
characteristics. It states:
(b) Specific Offense Characteristic
(1) If the defendant previously was
deported after a criminal conviction . . .
increase as follows . . . .:
(A) If the conviction was for an
aggravated felony, increase by 16 levels.
U.S.S.G. § 2L1.2(b).
After pleading guilty, Luna obtained a continuance of
his sentencing hearing in order to challenge his earlier 1993
conviction in a Massachusetts state court. Luna then moved in
state court to vacate his previous conviction. As support for
this motion, Luna cited Mass. Gen. Laws ch. 278 § 29D (1998).
This law, which applies in all criminal cases in Massachusetts,
mandates a warning to defendants pleading guilty, that a guilty
plea may have adverse immigration consequences. Chapter 278, §
29D states:
The court shall not accept a plea of guilty
. . . from any defendant in any criminal
proceeding unless the court advises such
defendant of the following: "If you are not
a citizen of the United States, you are
hereby advised that conviction of the
offense for which you have been charged may
have the consequences of deportation,
exclusion from admission to the United
States, or denial of naturalization,
pursuant to the laws of the United States."
The defendant shall not be required at the
time of the plea to disclose to the court
his legal status in the United States . . .
.
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If the court fails so to advise the
defendant, and he later at any time shows
that his plea and conviction may have one of
the enumerated consequences, the court, on
the defendant's motion, shall vacate the
judgment, and permit the defendant to
withdraw the plea of guilty . . . . Absent
a record that the court provided the
advisement required by this section, the
defendant shall be presumed not to have
received the required advisement.
In a proceeding before the state court, the judge who had
accepted the original plea examined the docket and record from
the 1993 conviction. The court noted that the box marked
"Advised of Alien Rights" had not been checked.1 In keeping with
§ 29D's presumption, the court vacated the plea.
After vacating the 1983 conviction, Luna moved in
federal district court to advance his sentencing. At
sentencing, Luna claimed that § 2L1.2(b) no longer applied to
him, because he had vacated his conviction. The government
disagreed, arguing instead that the relevant time for
determination of felon status is the time of deportation, not
the time of sentencing on the reentry offense. The district
court accepted the defendant's view and declined to apply the
1 We note that there are, on the docket sheet, five boxes to
check for colloquy warning. They are: "Advised of right to
counsel;" "Advised of right to drug exam;" "Advised of right to
bail review;" "Advised of right to F.I. Jury Trial;" and
"Advised of alien rights." The New Bedford District Court
checked only one of these boxes: the one for the right to a jury
trial.
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16-level enhancement. The government objected to the resulting
sentence of eighteen months, and this appeal ensued.
III. Standard of Review
We review the legal determination of the guideline's
meaning and scope de novo. See United States v. Talladino, 38
F.3d 1255, 1263 (1st Cir. 1994) ("[Q]uestions of law — including
interpretive questions concerning the meaning and scope of the
sentencing guidelines — engender de novo review.").
IV. Guideline Interpretation
We begin, as with other questions of statutory and
regulatory interpretation, with the plain language of the
disputed guideline. See United States v. McMinn, 103 F.3d 216,
221 (1st Cir. 1997) ("Our construction is guided by conventional
interpretive principles."); see also United States v. Butler,
207 F.3d 839, 847 (6th Cir. 2000) ("It was proper for the
district court to take a plain language approach in its
interpretation of § 3B1.4, because courts must treat the
sentencing guidelines as if they were a statute, and follow the
clear, unambiguous language if there is no manifestation of a
contrary intent.") (opinion of Clay, J.) (internal quotation
marks omitted); United States v. Lewis, 93 F.3d 1075, 1080 (2d
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Cir. 1996) ("Interpretation of the Guidelines is similar to
statutory construction.").2
The guideline at issue in this case states: "If the
defendant previously was deported after a . . . conviction . .
. for an aggravated felony increase 16 levels." The
guideline's plain language militates in favor of the
government's position. The language suggests that the relevant
time is the time of deportation: "deported after a . . .
conviction," and not the time of sentencing. The guideline
speaks of time, not possession or status. In other words, the
guideline (and statute) might have dealt with aliens who have a
previous aggravated felony conviction or are convicted felons,
and then are convicted of reentry. The guideline, however, is
in the past tense, which suggests that the present status of the
2 There is one crucial difference between interpreting
criminal statutes and all other statutes. In interpreting a
criminal statute, including the guidelines, the rule of lenity
applies. See United States v. Werlinger, 894 F.2d 1015, 1017-
18 (8th Cir. 1990) (invoking rule of lenity to find that
Guidelines shall not be readily construed to multiply punishment
for conduct already punished through the application of another
guideline). The rule of lenity requires that ambiguities in the
scope of a criminal statute must be resolved in favor of the
criminal defendant. See United States v. Lanier, 520 U.S. 259,
266 (1997); see also United States v. Bowen, 127 F.3d 9, 13 (1st
Cir. 1997) (invoking the rule of lenity to resolve Sentencing
Guidelines' ambiguity in favor of criminal defendant). The rule
comes into operation, though, only when the language of the
statute is ambiguous. See United States v. Campbell, 167 F.3d
94, 98 (2d Cir. 1999).
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aggravated felony conviction is irrelevant. It is impossible to
alter the historical fact that the defendant was convicted, and
then deported.
The same is true of the statute itself, which speaks
of an alien "whose removal was subsequent to a conviction for
commission of an aggravated felony." 8 U.S.C. § 1326(b). By
all indications, the relevant time under the statute is the
moment of removal, not of sentencing.
This conclusion is in accord with that of the Tenth
Circuit in the only reported decision to address this problem.3
In United States v. Cisneros-Cabrera, 110 F.3d 746 (10th Cir.
1997), the court ruled that subsequent vacatur of the previous
aggravated felony was irrelevant to the application of §
2L1.2(b). The court did so exclusively by resort to the plain
language of § 2L1.2(b) and § 1326(b). It stated:
3 In our decision in United States v. Smith, 36 F.3d 128
(1st Cir. 1994), we considered a facially similar claim. The
defendant in that case alleged that his indictment under § 1326,
which referred specifically to § 1326(b)(2), should have been
dismissed because he succeeded in vacating his prior state
conviction. We rejected that contention, based on our view that
§ 1326(b) does not establish a separate offense, but instead
provides a sentencing enhancement. That view has since been
affirmed by the Supreme Court. See Almendarez-Torres v. United
States, 523 U.S. 224 (1998). Despite the factual similarity,
Smith bears no resemblance to the instant case as a legal
matter; it dealt with dismissal of the indictment based on a
ground since rejected by the Supreme Court, and not with
sentencing on an issue not yet considered by the Supreme Court.
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Given the clarity of 8 U.S.C. § 1326(b)(2)
and U.S.S.G. § 2L1.2(b)(2), the district
court's consideration of [defendant's]
vacated state conviction to enhance his
sentence was appropriate. [Defendant] does
not deny he was deported after a conviction
for an aggravated felony, and under §
2L1.2(b)(2), no more is required. Thus,
while true most other sentence enhancement
provisions consider only those convictions
valid at the time of sentencing, in this
case, the relevant time frame for
determining whether the sentence enhancement
should apply is specifically provided by
statute.
Cisneros-Cabrera, 110 F.3d at 748.
Review of other statutes that depend on prior
convictions supports our conclusion with respect to the language
of the statute. The guidelines concerning calculation of a
defendant's criminal history score contain an explicit exception
for convictions subsequently vacated. Application Note 6 to
U.S.S.G. § 4A1.2 states: "Sentences resulting from convictions
that (A) have been reversed or vacated because of errors of law
or because of subsequently discovered evidence exonerating the
defendant, or (B) have been ruled constitutionally invalid . .
. are not to be counted." Other guidelines that provide
sentence enhancements based on prior convictions explicitly
incorporate by reference the above limitations. For example,
Application Note 5 to U.S.S.G. § 2K2.1, dictates that, when
considering enhancement under the guideline for possession of a
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firearm, "'prior felony conviction(s),' are defined in § 4B1.2."
More importantly, the Armed Career Criminal Act, 18
U.S.C. § 924 (1994) (ACCA), bars the use of "[a]ny conviction
which has been expunged, or set aside . . . .," see § 921(a)(20)
(providing definitions for § 924), as does the guideline that
pertains to the Act. See U.S.S.G. § 4B1.2, Application Note 3
(cross-referencing definition of convictions set out in §
4A1.2).
The absence of an explicit exception for vacated
convictions in § 2L1.2(b) and the statute compels a result here
that is different from the result that would obtain under the
ACCA or § 4A1.2. Congress (in the ACCA) and the Sentencing
Commission (in § 4A1.2) have both manifested an ability to state
unambiguously when vacated convictions are to be disregarded for
purposes of punishment. Because the guidelines elsewhere make
such an exception explicit, we are unable to read one implicitly
into § 2L1.2(b).
Our interpretation of the statute is in accord with the
interpretive method used by the Supreme Court in the analogous
Custis v. United States, 511 U.S. 485(1994). In that case the
Supreme Court considered whether the ACCA "should be read to
permit defendants to challenge the constitutionality of
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convictions used for sentencing purposes." Id. at 490. The
Court answered this question in the negative, noting that
related statutes explicitly permitted such challenges, but the
ACCA did not. The Court found this omission deliberate and
dispositive, stating: "The language of [the Drug Act] shows
that when Congress intended to authorize collateral attacks on
prior convictions . . . it knew how to do so. Congress'
omission of similar language in [the ACCA] indicates that it did
not intend to give defendants the right to challenge the
validity of prior convictions under this statute." Id. at 492.
Cf. Gozlon-Peretz v. United States, 498 U.S. 395, 404 (1991)
("[W]here Congress includes particular language in one section
of a statute but omits it in another section of the same Act, it
is generally presumed that Congress acts intentionally and
purposely in the disparate inclusion or exclusion.") (quoted in
Custis, 511 U.S. at 492).
The First Circuit faced an similar interpretive
question in United States v. Josleyn, 99 F.3d 1182, 1198-99 (1st
Cir. 1996). In that case, the defendant argued that a guideline
enhancement for "abuse of a position of trust" should not apply
to commercial bribery cases. As support for his position, he
noted that because the guidelines mandated that the enhancement
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could not apply to public bribery cases, they should not apply
to private bribery. We rejected this position, stating:
The absence of an explicit provision
restricting the application of the abuse-of-
trust enhancement in commercial bribery
cases severely undercuts the analogy urged
by [the defendant]. See United States v.
Newman, 982 F.2d 665, 673-74 (1st Cir. 1992)
(applying expressio unius est exclusio
alterius principle in this sentencing
context). Furthermore, the Sentencing
Commission took pains throughout the
Guidelines to specify the circumstances in
which courts should not impose enhancements
for abuse of trust.
Josleyn, 99 F.3d at 1198-99. For similar reasons, we refuse to
adopt Luna's view of the instant guideline.
In addition, the commentary to § 2L1.2(b) implies that
Luna's now-vacated conviction should still be considered.
Application Note 4 states: "An adjustment under subsection (b)
for a prior felony conviction applies in addition to any
criminal history points added for such conviction in Chapter
Four, Part A . . . ." Application Note 4 makes clear that under
§ 2L1.2(b), prior convictions are distinct from convictions
considered under § 4A1.2. Convictions that the court may
consider pursuant to § 4A1.2 are limited to those that have not
been vacated; those that the court may consider under § 2L1.2(b)
carry no such limitation, and are to be considered "in
addition."
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Diaz argues that the instant case is controlled by our
decision in United States v. Cuevas, 75 F.3d 778 (1st Cir.
1996). In Cuevas we considered the question of whether a plea
of nolo contendere constituted a conviction for purposes of §
2L1.2. According to a state statute, such pleas could not be
introduced in any later proceeding, provided that the defendant
had successfully completed probation on the nolo plea. See id.
at 780 & n.5. We held that "conviction" under § 2L1.2 was a
matter of federal law, and that the state law did not control.
See id. at 781.
Contrary to Luna's assertions on appeal, we did not
hold that § 4A1.1-2 provides the definition for the term
"conviction" in the reentry guideline. We did not go that far.
See Cuevas, 75 F.3d at 780-81. We described the criminal
history guideline as "provid[ing] . . . guidance," id. at 782,
and "instructive, if not dispositive," id. at 782 n.10. Even if
we were to agree, which we do not, that Cuevas turned on
application of § 4A1.1-2 to § 2L1.2, that still would not bind
us in the instant case. Cuevas defined "conviction" but did not
deal with the exclusions from the definition that are at issue
in the instant case.4
4
We are aware of the decision of the Second Circuit in
United States v. Campbell, 167 F.3d 94 (2d Cir. 1999). In that
case, the Second Circuit held that convictions that had been
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V. Conclusion
For the reasons stated, we find that the district court
abused its discretion in refusing to impose the enhancement.
Accordingly, we vacate the sentence imposed by the district
court and remand for resentencing.5
vacated could still form the basis for the § 2L1.2 enhancement
where the reason for the vacatur (or reversal) was "for reasons
unrelated to innocence or errors of law." Id. at 98. In doing
so, the court, like the Cuevas court, relied on § 4A1.2 as
instructive, although not controlling, for purposes of § 2L1.2.
Were we to adopt the view of the Second Circuit, our result
might be the same; the vacatur in Diaz's case is arguably
technical. We do not reach the issue, however, because of our
holding above that the plain language of the guideline requires
use of Luna's prior conviction.
5 One caveat is appropriate. The instant case does not
require us to decide whether allowing § 2L1.2(b)'s enhancement
to rest on a prior conviction vacated as a result of a
constitutional infirmity, egregious error of law, or
determination of innocence, might in some limited circumstances
raise constitutional due process concerns.
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