FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
February 12, 2014
TENTH CIRCUIT
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 13-2083
(D.C. No. 2:06-CR-00615-WJ)
MARTIN SAAVEDRA–VILLASENOR, (D.N.M.)
Defendant - Appellant.
ORDER AND JUDGMENT*
Before TYMKOVICH, HOLLOWAY, and MATHESON, Circuit Judges.
When he illegally reentered the United States after completing a prison term in
this country and then being deported to Mexico, Martin Saavedra–Villasenor violated a
condition of his supervised release: that he not commit any more crimes. And Mr.
Saavedra1 did not deny that he had committed a federal crime by returning to the United
After examining the briefs and appellate record, this panel has decided
unanimously that oral argument would not materially assist the determination of this
appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered
submitted without oral argument. This order and judgment is not binding precedent,
except under the doctrines of law of the case, res judicata, and collateral estoppel. It may
be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
1
We follow Mr. Saavedra’s lead in referring to him as Mr. Saavedra, rather than
as Mr. Saavedra–Villasenor.
States without authorization—namely, a violation of 8 U.S.C. § 1325, which prohibits
improper entry by an alien. He pleaded guilty to the charges of illegal entry and admitted
that he had violated the conditions of his supervised release.
At a hearing on the revocation of his supervised release, the district court
classified Mr. Saavedra’s illegal reentry as a Grade B, rather than a Grade C, supervised-
release violation under the United States Sentencing Guidelines. In brief, this
classification meant that Mr. Saavedra would face a longer advisory sentencing range for
his supervised-release violation. Applying the Sentencing Guidelines, the district court
sentenced him to twenty-one months in prison. Mr. Saavedra now challenges his
sentence on appeal, arguing that the district court wrongly placed his supervised-release
violation in the more stringent Grade B category for sentencing purposes.
Exercising jurisdiction under 28 U.S.C. § 1291, we AFFIRM the district court’s
judgment.
I. BACKGROUND
Mr. Saavedra, an alien and Mexican national, has spent a great deal of time in the
United States. For much of that time, he has also been in trouble with the law. The
trouble in this case began in 2006, when Mr. Saavedra pleaded guilty in federal district
court in New Mexico to illegally reentering the United States after being previously
deported, in violation of 8 U.S.C. § 1326(a)(1) and (2). Because he had a prior
aggravated-felony conviction for domestic battery on his record, Mr. Saavedra’s advisory
sentencing range under the Sentencing Guidelines was fairly high: between seventy-
seven and ninety-six months. The federal district court in New Mexico sentenced him to
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a term of imprisonment at the low end of the advisory range—seventy-seven months—to
be followed by a three-year period of supervised release.2
Mr. Saavedra’s term of supervised release began on July 18, 2011, when he was
released from prison and deported to Mexico. That same day, Mr. Saavedra illegally
reentered the United States, and he did so again on December 28, 2011. In July 2012,
Mr. Saavedra was charged with a two-count violation of 8 U.S.C. § 1325 in the United
States District Court for the Southern District of California. He pleaded guilty, and the
federal district court in California sentenced him to six months in prison on the first
count, along with a special penalty assessment of ten dollars, and to one year in prison on
the second count, along with a special penalty assessment of one hundred dollars. The
district court ordered the sentences to run concurrently. Mr. Saavedra was then
transferred to New Mexico, where the federal district court conducted a hearing on the
government’s petition to revoke the supervised release imposed following his 2006
conviction. Because Mr. Saavedra did not contest the fact that he had violated the
2
In 2007, Mr. Saavedra filed a petition for writ of habeas corpus under 28 U.S.C.
§ 2255. In the petition, he asserted that his prior conviction for domestic battery was not
an aggravated felony and that his counsel had therefore been ineffective in not
investigating the past conviction or objecting to its classification. The district court
denied Mr. Saavedra’s petition. After thoroughly considering his claims, we denied Mr.
Saavedra’s request for a certificate of appealability and dismissed his appeal in United
States v. Saavedra–Villasenor, 316 F. App’x 718 (10th Cir. 2008). We further denied
him authorization to file a second, successive § 2255 motion in In re Saavedra–
Villasenor, No. 09-2287 (10th Cir. Dec. 11, 2009). Mr. Saavedra’s 2006 conviction and
sentence are not at issue in this appeal, and it is undisputed that he was subject to
prosecution for a supervised-release violation when he illegally reentered the country in
2011.
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conditions of his supervised release, the only question before the district court was what
the punishment should be for the admitted violation.
At the hearing, the government asserted that Mr. Saavedra’s supervised-release
offense should be classified as a Grade B violation under § 7B1.1 of the Sentencing
Guidelines. Mr. Saavedra disagreed, arguing that his offense was instead a Grade C
violation—a less serious category. The distinction is an important one because it affects
the length of the advisory sentencing range for a supervised-release violation. Under the
Sentencing Guidelines, a Grade B violation consists of “conduct constituting any . . .
federal, state, or local offense punishable by a term of imprisonment exceeding one year.”
U.S.S.G. § 7B1.1(a)(2). A Grade C violation, on the other hand, is one that involves
“conduct constituting . . . a federal, state, or local offense punishable by a term of
imprisonment of one year or less.” Id. § 7B1.1(a)(3).
Agreeing with the government, the district court found that Mr. Saavedra’s offense
was a Grade B violation because his actual conduct in illegally reentering the country was
punishable by a term of imprisonment exceeding one year under the charging statute, 8
U.S.C. § 1325. A finding of a Grade B supervised-release violation, coupled with a
criminal-history category of VI at the time of Mr. Saavedra’s original sentencing in 2006,
resulted in an advisory sentencing range of twenty-one to twenty-seven months.
Accordingly, the district court sentenced Mr. Saavedra to twenty-one months in prison
for violating the terms of his supervised release and ordered that his sentence be served
consecutive to his one-year sentence from California. Mr. Saavedra now appeals, asking
us to vacate his sentence and remand the case to the district court for resentencing.
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II. DISCUSSION
On appeal, Mr. Saavedra challenges only the district court’s characterization of his
offense as a Grade B supervised-release violation, instead of as a Grade C violation,
under § 7B1.1 of the Sentencing Guidelines. He argues that, as a result of this allegedly
erroneous classification, the district court incorrectly calculated the length of his
sentence.
This appeal requires us to review the district court’s interpretation of the
Sentencing Guidelines and its application of the Sentencing Guidelines to the facts of Mr.
Saavedra’s case. “When evaluating the district court's interpretation and application of
the Sentencing Guidelines, we review legal questions de novo and factual findings for
clear error, giving due deference to the district court's application of the guidelines to the
facts.” United States v. Munoz–Tello, 531 F.3d 1174, 1181 (10th Cir. 2008) (internal
quotation marks omitted). Our interpretation of the Sentencing Guidelines proceeds
“according to accepted rules of statutory construction.” United States v. Nacchio, 573
F.3d 1062, 1066 (10th Cir. 2009). We begin by
look[ing] at the language in the guideline itself, as well as at the
interpretative and explanatory commentary to the guideline provided by the
Sentencing Commission. [C]ommentary in the Guidelines Manual that
interprets or explains a guideline is authoritative unless it violates the
Constitution or a federal statute, or is inconsistent with, or a plainly
erroneous reading of, that guideline.
United States v. Robertson, 350 F.3d 1109, 1112-13 (10th Cir. 2003) (alteration in
original) (citations and internal quotation marks omitted). Furthermore, “Guidelines
commentary is ‘treated as an agency's interpretation of its own legislative rule,’ i.e., ‘it
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must be given controlling weight unless it is plainly erroneous or inconsistent with the
regulation.’” Nacchio, 573 F.3d at 1067 (quoting Stinson v. United States, 508 U.S. 36,
44-45 (1993) (internal quotation marks omitted)).
Under the terms of 18 U.S.C. § 3583(d), a mandatory condition of supervised
release is “that the defendant not commit another Federal, State, or local crime during the
term of supervision.” A court may “revoke a term of supervised release, and require the
defendant to serve in prison all or part of the term of supervised release . . . if the court . .
. finds by a preponderance of the evidence that the defendant violated a condition of
supervised release.” Id. § 3583(e)(3).
The Sentencing Guidelines create three grades of supervised-release violations:
Grade A, Grade B, and Grade C.3 See U.S.S.G. § 7B1.1(a)(1)-(3). As noted above, the
Sentencing Guidelines describe a Grade B violation as “conduct constituting any . . .
federal, state, or local offense punishable by a term of imprisonment exceeding one year.”
Id. § 7B1.1(a)(2). For its part, a Grade C violation—the least serious category of
offense—consists of “conduct constituting . . . a federal, state, or local offense punishable
by a term of imprisonment of one year or less.” Id. § 7B1.1(a)(3). Unquestionably, Mr.
Saavedra violated the terms of his supervised release when he committed a federal crime:
improper entry or reentry by an alien into the United States, in violation of 8 U.S.C. §
1325. Relying on the definitions found in U.S.S.G. § 7B1.1, the district court classified
Mr. Saavedra’s offense as a Grade B supervised-release violation. We agree.
3
Neither party argues that Mr. Saavedra’s offense is a Grade A violation.
Accordingly, we limit our discussion to Grade B and Grade C violations only.
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Mr. Saavedra was charged under, and pleaded guilty to violating, the terms of 8
U.S.C. § 1325. Following the entry of his guilty plea, the federal district court in
California sentenced him to one year of imprisonment. It is the precise length of that
sentence—exactly one year—that has created the problem in this case. Mr. Saavedra
says his offense should properly have been grouped into the Grade C category. After all,
he was sentenced to one year in prison for violating the illegal-entry statute, and the
Grade C classification embraces “conduct . . . punishable by a term of imprisonment of
one year or less.” U.S.S.G. § 7B1.1(a)(3).
Mr. Saavedra first asserts that the classification of his supervised-release violation
must be determined by looking to the actual conduct that gave rise to the violation. He
then argues that the scope of this illegal conduct, in turn, can be judged only in light of
the actual sentence eventually imposed for the offense. In support of this argument, Mr.
Saavedra points to the first application note accompanying U.S.S.G. § 7B1.1, which
instructs that “the grade of the [supervised-release] violation is to be based on the
defendant's actual conduct.” Id. § 7B1.1 cmt. 1. Here, he contends that because his
“actual conduct”—the violation of 8 U.S.C. § 1325—ended up being punished by a
sentence of only one year, then his supervised-release violation must therefore fall
squarely within the Grade C category.
To be sure, Mr. Saavedra’s argument has some surface appeal: His illegal conduct
landed him a one-year sentence, and a Grade C violation is one that is punishable by one
year or less of imprisonment. But this argument hinges on a misreading of U.S.S.G. §
7B1.1. This is because the actual sentence imposed on a defendant for committing the
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underlying offense is not the proper measure for classifying that offense as either a Grade
B or Grade C violation under the Sentencing Guidelines. Rather, the relevant
consideration is how the actual conduct giving rise to the violation is punishable under
applicable law.
How an offense is punishable under a statute, and how that offense is ultimately
punished upon conviction (if at all), may, of course, be two very different things. No
doubt cognizant of this distinction, the drafters of the Sentencing Guidelines have plainly
defined a Grade B violation as “conduct . . . punishable by a term of imprisonment
exceeding one year.” Id. § 7B1.1(a)(2) (emphasis added). In that same vein, a Grade C
violation is defined as “conduct . . . punishable by a term of imprisonment of one year or
less.” Id. § 7B1.1(a)(3) (emphasis added). We have previously held that the word
“punishable” encompasses the full scope of punishment possible for an offense,
“irrespective of the actual sentence imposed.” United States v. Hernandez–Garduno, 460
F.3d 1287, 1293 (10th Cir. 2006); see also United States v. Hernandez–Castillo, 449 F.3d
1127, 1130-31 (10th Cir. 2006) (holding that a defendant who was given a 157-day
suspended sentence by a California state court had nevertheless been convicted of an
offense punishable by more than one year’s imprisonment because California law made
the offense at issue “punishable” by up to three years’ imprisonment); Schrader v.
Holder, 704 F.3d 980, 986 (D.C. Cir. 2013) (emphasizing “the commonsense meaning of
the term ‘punishable,’ which refers to any punishment capable of being imposed”);
United States v. Denton, 611 F.3d 646, 651 (9th Cir. 2010) (“Whether a defendant has
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committed a Grade A or Grade C violation of his supervised release depends on the
potential punishment for the underlying offense.”).
The underlying offense to which Mr. Saavedra pleaded guilty was a violation of 8
U.S.C. § 1325, which prohibits the unauthorized entry or reentry of an alien into the
United States. Mr. Saavedra had previously been deported from this country, and his
subsequent reentries were not authorized. As punishment for such repeat violations, the
statute prescribes a term of imprisonment of “not more than 2 years.” 8 U.S.C. §
1325(a). Under the plain terms of the charging statute, Mr. Saavedra’s offense was
punishable by a term of imprisonment exceeding one year, thus making it a Grade B
violation under the Sentencing Guidelines.4
This understanding of what the Sentencing Guidelines mean by “punishable”
conduct is bulwarked by the text of the first application note to U.S.S.G. § 7B1.1, which
makes clear that a supervised-release violation
may be charged whether or not the defendant has been the subject of a
separate federal, state, or local prosecution for such conduct. The grade of
violation does not depend upon the conduct that is the subject of criminal
charges or of which the defendant is convicted in a criminal proceeding.
Id. § 7B1.1 cmt. 1. That is to say, the fact that a defendant may never be prosecuted for
committing a new crime in no way lessens his culpability for breaking the conditions of
4
The government also points out that the federal district court in California
assessed a $100 special penalty against Mr. Saavedra. A penalty in that amount is
appropriate only in the case of a felony. See 18 U.S.C. § 3013(a)(2)(A). In addition, the
government correctly notes that Mr. Saavedra’s conduct was also chargeable under 8
U.S.C. § 1326, which makes the reentry of an alien “whose removal was subsequent to a
conviction for commission of an aggravated felony”—as was Mr. Saavedra—punishable
by up to twenty years’ imprisonment. 8 U.S.C. § 1326(b)(2).
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supervised release. In such cases, any classification of the supervised-release violation
will, of necessity, be guided by reference to the potential punishment capable of being
imposed for the underlying offense—in other words, by how the conduct is punishable.
In short, “the grade of the violation is to be based on the defendant's actual conduct”—
not the actual sentence that may or may not ever be imposed as direct punishment for that
unlawful conduct. Id.
As a final argument, Mr. Saavedra asserts that any ambiguity in U.S.S.G. § 7B1.1
should be resolved in his favor under the rule of lenity. But this rule comes into play
only after a criminal defendant “has established that the guidelines are ambiguous.”
United States v. Boyd, 721 F.3d 1259, 1263 (10th Cir. 2013). Mr. Saavedra has failed to
carry that burden in this case. We hold that the district court did not err in classifying Mr.
Saavedra’s illegal conduct as a Grade B supervised-release violation under the
Sentencing Guidelines.
III. CONCLUSION
For the foregoing reasons, the judgment of the district court is AFFIRMED.
ENTERED FOR THE COURT
William J. Holloway, Jr.
Circuit Judge
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