United States v. Caicedo-Cuero

Revised December 4, 2002

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 02-20751

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JESUS MARTIN CAICEDO-CUERO,

Defendant-Appellant.

Appeal from the United States District Court
For the Southern District of Texas

November 14, 2002

Before HIGGINBOTHAM, DUHÉ, and DeMOSS, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

Jesus Martin Caicedo-Cuero (“Caicedo”) appeals his sentence of

twenty-one months’ imprisonment for illegal reentry into the United

States pursuant to 8 U.S.C. § 1326. He presents us with two

issues: First, whether the district court erred in determining that

his “state jail felony” conviction for simple possession of

marijuana constituted a felony for purposes of 8 U.S.C. §

1326(b)(2)’s heightened maximum statutory sentence for prior

aggravated felonies and the eight-level aggravated felony

enhancement under Sentencing Guideline § 2L1.2(b)(1)(C). Second,
whether the trial court erred in concluding that his prior

conviction was for a “drug trafficking crime” and therefore an

aggravated felony under the 2001 version of § 2L1.2(b)(1)(C).

Reviewing the district court’s interpretation and application of

the Sentencing Guidelines de novo,1 we resolve these questions in

the same manner as the district court, and thus affirm Appellant’s

sentence.

I

In 1995, Caicedo, a Colombian citizen, pleaded guilty and

received a sentence of five years’ deferred adjudication probation

in Harris County, Texas for the “state jail felony” offense of

possession of marijuana.2 At the time of his prior offense, Texas

law provided that courts could impose a sentence of incarceration

of between 180 days and two years for commission of state jail

felonies.3 However, for first-time offenders, the law also

mandated that courts suspend imposition of the sentence and place

the defendant on community supervision.4

1
United States v. Serna, – F.3d –, 2002 WL 31272357, at *1
(5th Cir. Oct. 11, 2002).
2
See TEX. HEALTH & SAFETY CODE ANN. § 481.121(b)(3) (Vernon 1995).
Caicedo was convicted of knowingly or intentionally possessing 1.75
pounds of marijuana.
3
TEX. PENAL CODE ANN. § 12.35(a) (Vernon 1995).
4
TEX. CRIM. PRO. CODE ANN. art. 42.12, § 15(a) (Vernon 1995).
As a condition of community supervision, the law allowed trial
courts to require defendants to serve a maximum of 60 days in a
state jail felony facility. Id. § 15(d). The law has since been
amended to make suspension of the sentence and imposition of

2
 In 1996, Appellant was deported to Colombia. Sometime

thereafter, he illegally reentered the United States. In 2002, he

was caught and charged with one count of illegal reentry in

violation of 8 U.S.C. § 1326. He pleaded guilty to the charge, and

the district court sentenced him to twenty-one months’

incarceration and three years of supervised release. The court

calculated the sentence based on its conclusion that the

defendant’s prior conviction qualified as an aggravated felony

under § 1326(b)(2) and Sentencing Guideline § 2L1.2(b)(1)(C).

Section 1326(b)(2) mandates that a defendant “whose removal was

subsequent to a conviction for commission of an aggravated felony”

be susceptible to a maximum sentence of twenty years.5 Moreover,

Sentencing Guideline § 2L1.2(b)(1)(C) provides that a defendant

previously removed after commission of an aggravated felony should

receive an eight-level offense enhancement.6

Caicedo urged at sentencing that his prior crime did not

constitute an aggravated felony because, as a first-time offender,

he was susceptible only to community supervision, and the

community supervision discretionary. See TEX. CRIM. PRO. CODE ANN.
art. 42.12, § 15(a) (Vernon 2001) (“On conviction of a state jail
felony punished under Section 12.35(a), Penal Code, the judge may
suspend the imposition of the sentence and place the defendant on
community supervision or may order the sentence to be executed.”).

5
8 U.S.C. § 1326(b)(2) (2001).
6
U.S. Sentencing Guidelines Manual [hereinafter “USSG”] §
2L1.2(b)(1)(C) (2001).

3
definition of “felony” applicable in determining whether his prior

crime constituted an aggravated felony requires the crime to be

punishable by over a year in prison. The district court found,

however, that the defendant’s prior crime constituted an aggravated

felony even under the definition proffered by Appellant. It

reasoned that, although Texas law mandated suspension of the term

of imprisonment and imposition of community supervision for first-

time offenders, the applicable statutory range of punishment for

his offense was still 180 days to two years of incarceration. The

district court characterized the mandatory probation provision for

first-time offenders as a “sentencing factor” that benefitted

first-time offenders but did not otherwise alter the statutory

maximum punishment.

Caicedo additionally objected to imposition of the aggravated

felony enhancement on the basis that his prior conviction for

simple possession did not constitute a “drug trafficking crime”

under the 2001 version of the Sentencing Guidelines. The district

court also rejected this contention, relying upon United States v.

Hinojosa-Lopez,7 which held that, under a prior version of § 2L1.2,

a state felony conviction for simple possession constituted a drug

trafficking crime and therefore an aggravated felony warranting an

offense-level enhancement.

II

7
130 F.3d 691, 693-94 (5th Cir. 1997).

4
 On appeal, Caicedo first reurges that the correct definition

of “felony” for purposes of the aggravated felony provisions

requires a maximum imprisonment range exceeding one year, and that,

under this definition, his prior conviction for simple possession

is not an aggravated felony because the maximum punishment to which

he could have been subjected was community supervision. The

primary support for Appellant’s position lies in United States v.

Robles-Rodriguez, a case factually similar to Caicedo’s.8 The

Robles-Rodriguez court held that a state drug conviction for which

the maximum penalty was probation could not be an aggravated felony

triggering a sentence enhancement under § 2L1.2.9

Robles-Rodriguez had been convicted of two drug possession

offenses under Arizona law prior to his initial deportation.10

After he illegally reentered, he was apprehended and pleaded guilty

to illegal reentry under 8 U.S.C. § 1326.11 The district court

found that the crimes for which the defendant had been convicted in

Arizona, which were classified as “felonies” under Arizona law,

were “aggravated felonies” warranting an offense level enhancement

8
281 F.3d 900 (9th Cir. 2002).
9
Id. at 901. The 2000 version of the Guidelines, at issue in
Robles-Rodriguez, provided for a sixteen-level enhancement if the
prior conviction was an aggravated felony. USSG § 2L1.2(b)(1)(A)
(2000).
10
281 F.3d at 902.
11
Id.

5
under § 2L1.2.12 However, these crimes were governed by an Arizona

law requiring courts “to sentence nonviolent persons convicted of

first- and second-time drug possession offenses to probation and

participation in a drug treatment program.”13 Under this law,

“state trial courts have no discretion to sentence first-time

offenders to incarceration,” and for second-time offenders, the

courts “may, as a condition of probation, impose up to one year of

jail time, but may not impose a prison sentence.”14 The Ninth

Circuit concluded that, despite the fact that state law described

the crimes as felonies, they were not felonies for purposes of the

aggravated felony enhancement because the maximum sentence to which

Robles-Rodriguez was subject under state law was probation.15

In examining whether the defendant’s prior convictions were

felonies for purposes of the aggravated felony enhancement, the

Robles-Rodriguez court faced the rather confusing question of which

definition of “felony” should apply to the aggravated felony

enhancement. The commentary to § 2L1.2 provides its own definition

of “felony offense,” which is “any federal, state, or local offense

punishable by imprisonment for a term exceeding one year.”16

12
Id. at 901-02 & 902 n.2.
13
Id. at 902.
14
Id.
15
Id.
16
USSG § 2L1.2 cmt. n.1 (2000).

6
However, the commentary also provides that “‘aggravated felony’ is

defined at 8 U.S.C. § 1101(a)(43).”17 Because the commentary refers

users to a special statutory definition of “aggravated felony,” the

Robles-Rodriguez court looked to 8 U.S.C. § 1101(a)(43) for

guidance as to which definition of “felony” should be used in

deciding whether a prior crime is an aggravated felony.18

Section 1101(a)(43) contains a list of aggravated felonies,

which includes “a drug trafficking crime (as defined in section

924(c) of Title 18).”19 Turning to 18 U.S.C. § 924(c), the court

noted that this section defines a “drug trafficking crime” as “any

felony punishable under the Controlled Substances Act [CSA] (21

U.S.C. 801 et seq.).”20 As Robles-Rodriguez’s prior conviction for

simple possession qualified as a crime punishable under the

Controlled Substances Act, the court looked to the CSA’s definition

of “felony,” which is found in 21 U.S.C. § 802(13), to determine

whether the crime was indeed a felony punishable under the CSA.21

That section defines a felony as “any Federal or State offense

classified by applicable Federal or State law as a felony.”22 The

17
Id.
18
281 F.3d at 903.
19
8 U.S.C. § 1101(a)(43) (2001).
20
281 F.3d at 903 (quoting 18 U.S.C. § 924(c)(2) (1994)).
21
Id.
22
21 U.S.C. § 802(13) (2001).

7
government contended that, under the plain meaning of this

definition, Robles-Rodriguez’s prior convictions qualified as

felonies, because Arizona law labeled the crime a “felony.”23

However, the Ninth Circuit looked past the definition found in

§ 802(13), and discovered that § 802(44) defined a “felony drug

offense” as “an offense that is punishable by imprisonment for more

than one year under any law of the United States or of a State or

foreign country that prohibits or restricts conduct relating to

narcotic drugs, marihuana, or depressant or stimulant substances.”24

Contrary to the government’s argument that the court should apply

the definition of felony found in § 802(13) and conclude “that an

offense is a felony under the Controlled Substance Act as long as

the convicting jurisdiction labels it as such, without regard to

the punishment designated for the offense,”25 the court found that

such a reading of § 803(13) violated basic principles of statutory

construction, as it would bring § 803(13)’s definition of “felony”

into conflict with § 803(42)’s definition of “felony drug

offense.”26 Instead, it determined that incorporation of §

803(42)’s “imprisonment for more than one year” requirement into §

23
281 F.3d at 904. Simple possession is not a felony under
federal law. United States v. Hinojosa-Lopez, 130 F.3d 691, 693
(5th Cir. 1997).
24
281 F.3d at 904 (quoting 21 U.S.C. § 802(44) (1994)).
25
Id.
26
Id. at 904-05.

8
803(13)’s felony definition corresponded to Congress’s

“longstanding practice of equating the term ‘felony’ with offenses

punishable by more than one year’s imprisonment,” and gave proper

deference to a state’s decision to treat simple drug possession “as

a medical problem best handled by treatment and education, not by

incarceration.”27 It reasoned that to conclude otherwise would be

to prioritize an “outdated and meaningless label” over the

substance of the punishment itself.28

As recognized by Robles-Rodriguez, two definitions of felony

inhere in 21 U.S.C. § 802: The definition of “felony” found in §

802(13), and the definition of “felony drug offense” found in §

802(44). Appellant would have us follow the Robles-Rodriguez

court’s lead by reading § 802(44)’s “more than one year of

confinement” requirement into the definition of felony found in §

802(13).

In the alternative, Caicedo argues that neither definition in

21 U.S.C. § 802 applies, because § 802 specifies that these

definitions are only to be applied to terms as used in Title 21.29

He posits that because the applicable definition of drug

trafficking crime, “any felony punishable under the Controlled

Substances Act (21 U.S.C. 801 et seq.),” is found in 18 U.S.C. §

27
Id.
28
Id. at 905.
29
21 U.S.C. § 802 (2001).

9
924(c), the definition of felony found in Title 18 should apply to

the “any felony” part of the drug trafficking definition.

Appellant asserts that, therefore, 18 U.S.C. § 3559(a) provides the

appropriate definition of felony. That section provides for

several classes of felonies and misdemeanors. Specifically, it

explains that the lowest felony category is Class E felonies, which

are those crimes for which the maximum term of imprisonment is

“less than five years but more than one year.”30 Caicedo explains

that § 3559(a) is a recodification of 18 U.S.C. § 1(1), which,

prior to its repeal, provided that “[a]ny offense punishable by

death or imprisonment for a term exceeding one year is a felony.”31

Appellant urges that, prior to its repeal, 18 U.S.C. § 1's

definition of felony unquestionably controlled § 924(c), and that

there is no indication either in the language of § 924(c) or in any

legislative history that Congress did not intend the definition of

felony set forth in § 1 to continue to apply to § 924(c) after the

repeal of § 1 and its recodification in § 3559.

Although the government champions the definition of felony

found in 21 U.S.C. § 802(13), which requires only that the state

30
18 U.S.C. § 3559(a) (2001).
31
18 U.S.C. § 1 (1984); see United States v. Graham, 169 F.3d
787, 793 n.5 (3d Cir. 1999) (“The legislative history suggests that
§ 3559 was enacted to put the definitions of felony and misdemeanor
within the sentencing part of the statute and to create
subdivisions within the felony and misdemeanor categories,
consistent with the reformers’ desire to create clear sentencing
categories. Thus, the repeal seems to have been mostly a matter of
housekeeping.”).

10
have classified the crime a felony,32 the government explains that

we need not sort through this labyrithine maze of definitions,

because even under the definitions advocated by Appellant,

Caicedo’s crime was a felony. Despite the fact that Texas state

32
Relying on our prior decisions in United States v. Hernandez-Avalos, 251
F.3d 505 (5th Cir. 2001), and United States v. Hinojosa-Lopez, 130 F.3d 691 (5th
Cir. 1997), the government urges that we have already decided the issue of which
definition of felony to apply in determining whether a prior conviction for
simple possession qualifies as an aggravated felony. However, this issue has
never before been brought squarely before the court. The cases cited by the
government held that the appellants’ prior convictions for simple possession were
drug trafficking crimes and therefore aggravated felonies because they were
felonies under state law and punishable, albeit as misdemeanors, under the
Controlled Substances Act. As Hinojosa-Lopez explained, the defendant there
contended that the definition of drug trafficking crime, which is “any felony
punishable under the” CSA, “indicates that in order to qualify as an aggravated
felony, the crime must be classified as a felony by the [CSA].” Id. at 693.
The court disagreed with this argument, finding instead that the definition of
drug trafficking crime encompassed two separate elements: “(1) that the offense
be punishable under the Controlled Substances Act ...; and (2) that the offense
be a felony.” Id. at 694 (internal quotation marks omitted). Thus, if a crime
is a felony “under applicable state law and [i]s punishable under the [CSA],” it
is a drug trafficking crime. Id. (internal quotation marks omitted).
The government reads these cases as holding that whether a drug crime
punishable under the CSA is a felony for purposes of the aggravated felony
provisions requires only that the crime be labeled by the state as a felony.
However, neither case actually addressed which definition of felony to use in
determining whether the crime was a felony under state law, because determination
of that issue was not required. In Hinojosa-Lopez, the defendant’s prior state
conviction for simple possession was labeled by the state of Texas as a felony
and was punishable by a life term. Id. at 694. Similarly, in Hernandez-Avalos,
the court was confronted with a conviction for simple possession that was a class
three felony under Colorado law and punishable by up to twelve years in prison.
251 F.3d at 505. In both cases, the court noted the state’s classification of
the crime and the maximum punishment range, apparently finding both important in
concluding that the crimes were felonies under state law for purposes of the
aggravated felony enhancement.
However, although these cases hold no precedential authority as to the
issue we currently confront, we note that, in holding that a drug crime was a
drug trafficking offense as long as it was a felony under state or federal law
and was punishable under the CSA, the Hinojosa-Lopez and Hernandez-Avalos courts
both relied upon United States v. Restrepo-Aguilar, 74 F.3d 361 (1st Cir. 1996),
in which the First Circuit explicitly held that the definition of “felony” found
in 21 U.S.C. § 802(13), that is, “any Federal or State offense classified by
applicable Federal or State law as a felony,” is applicable in determining
whether a prior drug crime is an aggravated felony. Id. at 365. Thus, Hinojosa-
Lopez and Hernandez-Avalos’s reliance on Restrepo-Aguilar suggests that the
proper definition of “felony” to apply in this context is that in § 802(13),
which asks only whether the state has labeled the crime a felony.

11
courts were required to suspend the confinement sentences of state

jail felons in favor of community supervision, the government

explains that such felons nevertheless were exposed to a sentence

of up to two years’ incarceration, because upon revocation of

community supervision these individuals could be required to serve

such imprisonment. Thus, the government contends that the offense

was a felony punishable under the CSA under any definition.

A recent Ninth Circuit case distinguishing Robles-Rodriguez

supports the government’s position. In United States v. Arellano-

Torres,33 that court found that a defendant convicted under a state

law that provided for a maximum punishment of more than one year

but, at the same time, required suspension of the sentence and

imposition of probation, was a felony for purposes of the

aggravated felony enhancement. In 1999, Arellano-Torres was

convicted of simple possession in Nevada.34 Although he was

sentenced to twelve to forty-eight months in state prison, Nevada

law required the state court to suspend the sentence and impose

probation.35 In 2001, Arellano was indicted for illegal reentry;

he subsequently pleaded guilty to the offense.36 At sentencing, the

33
303 F.3d 1173, 1180 (9th Cir. 2002).
34
Id. at 1175.
35
Id.
36
Id. at 1176.

12
district court enhanced Arellano’s sentence by eight levels,

categorizing his prior conviction as an aggravated felony.37

On appeal, Arellano contended that, under Robles-Rodriguez,

his prior conviction was not a felony for purposes of the

aggravated felony enhancement because the maximum punishment to

which he could have been subjected was probation.38 The Ninth

Circuit rejected this argument, reasoning:

Nevada directs the trial court to sentence a first-time
drug possessor to from one to four years in prison and
then requires the court immediately to suspend the
sentence in favor of probation. If the first-time
offender violates probation, the trial court may do
nothing, modify the conditions of probation or revoke
probation. Upon revocation, the court may either execute
the originally imposed sentence or reduce that sentence
and execute the modified term of imprisonment. Because
a first-time offender’s probation may be revoked in favor
of imprisonment, the maximum penalty for first-time
simple drug possession in Nevada is not probation but
rather four years in prison.39

The court further distinguished Nevada law from the Arizona statute

at issue in Robles-Rodriguez by explaining that “Arizona’s

statutory scheme ... is materially different ... because a first

time offender in Arizona will never be incarcerated for more than

one year in connection with his first-time offense, even if he

repeatedly violates probation.”40 Thus, because “the prospect of

37
Id.
38
Id. at 1178.
39
Id. at 1178-79 (citations omitted).
40
Id. at 1179.

13
serving the originally imposed sentence of up to four years always

hangs over the head of a first-time offender in Nevada,” the court

concluded that the appellant’s prior crime was punishable by more

than one year’s imprisonment and “is thus a ‘felony’ as defined by

Robles-Rodriguez.”41

We find the reasoning of the Ninth Circuit in Arellano-Torres

persuasive. Even assuming the applicable definition of felony for

purposes of the aggravated felony enhancement requires a maximum

punishment of over one year, the Texas law on state jail felonies

in effect at the time of Caicedo’s conviction demonstrates that

Appellant’s prior crime was a felony. State jail felonies were

created in 1993 to relieve the pressures of prison overcrowding in

Texas.42 The state jail felony law fulfilled this purpose by

mandating that, in most cases, courts suspend imposition of a

sentence and instead impose a term of community supervision.43

Thus, unlike the Arizona law at issue in Robles-Rodriguez, the

Texas legislature’s decision to carve out a category of certain

less severe felonies such as drug possession was not a “deliberate

policy choice to treat simple drug possession ‘as a medical problem

41
Id. at 1180 (citation omitted).
42
GEORGE E. DIX & ROBERT O. DAWSON, 43A TEXAS PRACTICE SERIES: CRIMINAL
PRACTICE AND PROCEDURE § 39.16 (2001); State v. Mancuso, 919 S.W.2d 86,
90 (Tex. Crim. App. 1996) (McCormick, J., dissenting) (“Section
12.35(a) and the community supervision law in Article 42.12,
Section 15, were enacted primarily to ease prison overcrowding.”).
43
Id.

14
best handled by treatment and education, not by incarceration.’”44

To the contrary, the Texas state jail felony law, which mandated

probation for first-time offenders and yet provided for imposition

of a jail term upon revocation of probation, constituted both a

realistic response to prison overcrowding and an attempt to

preserve the legislature’s judgment that state jail felonies were

indeed still felonies in substance.45

This assessment is further borne out by the fact that state

jail felons such as Caicedo suffer the same disabilities shared by

other felons, such as loss of the right to vote,46 ineligibility to

be elected to public office,47 disqualification from jury service,48

disqualification from being a law enforcement officer or county

jailer,49 immediate removal from office in the case of a county

officer,50 and mandatory revocation of a license to be a

44
Robles-Rodriguez, 281 F.3d at 905.
45
Cf. id. (“[E]ven assuming Arizona continues nominally to
classify offenses affected by [the law requiring probation for all
first-time drug possessors] as felonies, they are no longer
felonies in substance.”).
46
TEX. ELEC. CODE ANN. § 11.002(4) (Vernon 1995).
47
Id. § 141.001(a)(4).
48
TEX. CRIM. PROC. CODE ANN. art. 35.16(2) (Vernon 1995).
49
TEX. GOV’T CODE ANN. § 415.058(a) (Vernon 1995).
50
TEX. LOC. GOV’T CODE ANN. § 87.031(a) (Vernon 1995).

15
psychologist,51 lottery sales agent,52 or social worker.53 At the

time of Appellant’s conviction, state jail felonies were exempted

from none of these penalties, and, in fact, Texas law specifically

provided that the restoration of rights that may occur upon the

completion of community supervision did not apply to state jail

felons.54

Considering both the reason for creation of the state jail

felony category and the fact that such crimes were still

substantively regarded as felonies supports the notion that we

should regard the applicable punishment range for state jail

felonies as 180 days to two years, with the fact that a defendant

is a first-time offender being, as the district court labeled it,

a mere “sentencing factor” that resulted in automatic suspension of

the sentence of confinement. This interpretation squares with

Texas courts’ own understanding of the range of punishment for

state jail felonies. In describing state jail felony law as it

existed around the time of Caicedo’s prior conviction, the Texas

Court of Criminal Appeals explained that “the range of punishment

for a state jail felony is confinement in a state jail for any term

51
TEX. REV. CIV. STAT. ANN. art. 4512c, § 23(a)(1) (Vernon 1995).
52
TEX. GOV’T CODE ANN. § 466.155(a)(1)(A) (Vernon 1995).
53
TEX. HUM. RES. CODE ANN. § 50.021(a)(11) (Vernon 1995).
54
TEX. CRIM. PRO. CODE ANN. art. 42.12, § 20(b) (Vernon 1995);
R.R.E. v. Glenn, 884 S.W.2d 189, 192-93 (Tex. App.–Fort Worth 1994,
writ denied).

16
of not more than two years or less than 180 days and a fine not to

exceed $10,000.00. [However,] that sentence must be suspended and

the defendant placed on community supervision probation.”55

In sum, we find that Caicedo’s prior conviction qualifies as

a “felony” for purposes of the aggravated felony provisions

regardless of which definition of “felony” is applied.56 Texas not

55
Mancuso, 919 S.W.2d at 89 (emphasis added). Mancuso
provides a useful example of the way in which Texas’s state jail
felony laws played out in practice. After appellants pleaded
guilty to their state jail felony charges, under authority of Texas
Penal Code § 12.35 the trial court assessed punishment for the
defendants at two years confinement in a state jail. However,
pursuant to Texas Code of Criminal Procedure article 42.12, § 15,
it suspended imposition of the sentences and placed them on
community supervision probation for a period of five years. Id. at
87. On appeal, the Court of Criminal Appeals affirmed these
sentences. Id.
56
Our conclusion is consistent with our holdings in cases
presenting the analogous question of whether a suspended sentence
counts as a “term of imprisonment” for purposes of determining
whether a prior conviction was a crime of violence and therefore an
aggravated felony under § 2L1.2. 8 U.S.C. § 1101(a)(43)(F)
provides that one type of aggravated felony is “a crime of violence
for which the term of imprisonment [is] at least one year.” 8
U.S.C. § 1101(a)(43)(F) (2001). The phrase “term of imprisonment”
refers to “the period of incarceration or confinement ordered by a
court of law regardless of any suspension of the imposition or
execution of that imprisonment.” Id. § 1101(a)(48)(B). Thus, we
have explained that “our prior cases indicate that defendants who
receive suspended sentences [for crimes of violence] or ‘who avoid
a determined period of incarceration by a process which suspends
serving the term of imprisonment’ remain subject to the aggravated
felony definition.” United States v. Landeros-Arreola, 260 F.3d
407, 413 (5th Cir. 2001). Contrastingly, we have found that the
enhancement does not apply “when a defendant is directly sentenced
to probation, with no mention of suspension of a term of
imprisonment.” Id. at 410 (internal quotation marks omitted).
This analysis supports our determination here that the requirement
that a court suspend certain defendants’ sentences does not render
meaningless the applicable range of imprisonment.

17
only categorized his previous crime as a felony, but also provided

for a maximum term of imprisonment of two years. Therefore, the

district court did not err in concluding that Appellant’s drug

possession conviction was a qualifying felony.

III

Caicedo’s second issue on appeal is whether the district court

correctly found that his prior conviction for drug possession

qualified as a “drug trafficking crime” and therefore an aggravated

felony under the 2001 version of § 2L1.2. At sentencing, the

district court found that Sentencing Guideline § 2L1.2(b)(1)(C)

required enhancement of Caicedo’s sentence by an additional eight

levels not only because his prior conviction constituted a felony,

but also because it constituted a drug trafficking crime and

therefore an aggravated felony. Caicedo thus additionally appeals

the eight-level increase on the basis that the district court

utilized the wrong definition of “drug trafficking crime” and

concomitantly applied the aggravated felony enhancement

erroneously.

Although Caicedo was sentencing under the version of the

Guidelines that became effective on November 1, 2001, a complete

understanding of this issue necessitates a discussion of § 2L1.2 as

it existed before the 2001 amendments. Prior to November 1, 2001,

§ 2L1.2(b)(1)(C) provided that a defendant convicted of illegal

18
reentry should be given a sixteen-level increase if he had a

previous conviction for an “aggravated felony.”57 The commentary

to the 2000 version of this guideline explained that “‘aggravated

felony’ is defined at 8 U.S.C. § 1101(a)(43),”58 and § 1101(a)(43)

states that the term “aggravated felony” includes, inter alia,

“illicit trafficking in a controlled substance,” as defined in 21

U.S.C. § 802, “including a drug trafficking crime” as defined in 18

U.S.C. § 924(c).59

In United States v. Hinojosa-Lopez,60 we held that a felony

conviction for simple possession of a controlled substance

constituted a drug trafficking crime under 18 U.S.C. § 924(c), and

therefore an aggravated felony under these prior versions of §

2L1.2.61 The court reached this conclusion based on § 1101(a)(43)’s

provision that an aggravated felony is any offense classified as a

drug trafficking crime under 18 U.S.C. § 924(c)(2), and § 924(c)(2)

defines a “drug trafficking crime” as any felony punishable under

the Controlled Substances Act.62 Because simple possession is

57
See USSG § 2L1.2(b)(1)(A) (2000) (the version in effect
directly prior to 2001 amendments).
58
USSG § 2L1.2 App. Note 1 (2000).
59
8 U.S.C. § 1101(a)(43) (1994).
60
130 F.3d 691 (5th Cir. 1997); see also USSG § 2L1.2(b)(2)
(1995) (the version applied in Hinojosa-Lopez).
61
130 F.3d at 693-94.
62
18 U.S.C. 924(c)(2) (1994).

19
punishable under the Controlled Substances Act,63 we concluded that

state felony convictions for simple possession were aggravated

felonies.64

Caicedo urges that recent amendments to § 2L1.2 overrule

Hinojosa-Lopez. In 2001, § 2L1.2 was amended to allow for a

sixteen-level enhancement only if the prior felony conviction was

for “(i) a drug trafficking offense for which the sentence imposed

exceeded 13 months; (ii) a crime of violence; (iii) a firearms

offense; (iv) a child pornography offense; (v) a national security

or terrorism offense; (vi) a human trafficking offense; or (vii) an

alien smuggling offense committed for profit.”65 The guideline

further provides for a twelve-level enhancement for “a felony drug

trafficking offense for which the sentence imposed was 13 months or

63
21 U.S.C. § 844.
64
130 F.3d at 693-94. As previously noted, in Hinojosa-Lopez
the court rejected the appellant’s argument that because simple
possession is a misdemeanor under the Controlled Substances Act, it
is not an aggravated felony because it does not fall under §
924(c)(2)’s definition of a drug trafficking crime, which is
limited to “any felony punishable under the Controlled Substances
Act.” Id. (emphasis added). The court reasoned that as long as
the offense is a felony under state law, it is a drug trafficking
crime under § 924(c)(2), and therefore an aggravated felony, even
though it is only punishable as a misdemeanor under federal law.
Id. at 694.
65
USSG § 2L1.2(b)(1)(A) (2001).

20
less.”66 It also states that a court should impose an eight-level

increase if the prior conviction was for an “aggravated felony.”67

“Drug trafficking offense,” as used in § 2L1.2, is now defined

in the application notes as “an offense under federal, state, or

local law that prohibits the manufacture, import, export,

distribution, or dispensing of a controlled substance (or a

counterfeit substance) or the possession of a controlled substance

(or a counterfeit substance) with intent to manufacture, import,

export, distribute, or dispense.”68 As the government concedes,

this definition clearly excludes simple possession of a controlled

substance. However, as with the 2000 Guidelines, the application

notes still explain that an “‘aggravated felony’ has the meaning

given that term in 8 U.S.C. § 1101(a)(43).”69 By continuing to

reference § 1101(a)(43) for its definition of aggravated felony, §

2L1.2 persists in labeling § 924(c)(2) drug trafficking offenses,

including simple possession, as aggravated felonies. Thus, this

guideline implicates two distinct–and conflicting–definitions of

drug trafficking crimes.

The drug trafficking offense definition provided in the

commentary to § 2L1.2 clearly applies to the explicit reference to

66
Id. § 2L1.2(b)(1)(B).
67
Id. § 2L1.2(b)(1)(C).
68
Id. cmt. n.1(B)(ii).
69
Id. cmt. n. 2.

21
“drug trafficking offense” in the guideline’s sixteen- and twelve-

level enhancement provisions. However, the question arises whether

this definition also applies to those drug trafficking crimes

considered aggravated felonies warranting eight-level increases.

Appellant argues that the application notes’ definition of “drug

trafficking offense” supercedes the definition of drug trafficking

crime in 18 U.S.C. § 924(c)(2) for purposes of determining what

prior convictions constitute aggravated felonies. He asserts that

this court must view the definition proffered in the guideline as

a statement by the Sentencing Commission that Hinojosa-Lopez’s

interpretation of “drug trafficking crime” in 8 U.S.C. §

1101(a)(43) to include simple possession within the purview of

aggravated felonies was in error.

Although no other circuit courts have spoken on this issue,

two district courts, one within this circuit, have adopted

Appellant’s position. In United States v. Sanchez,70 a district

court in the Western District of Texas held that the definition of

“drug trafficking offense” found in the application notes to the

2001 Sentencing Guidelines should be applied not only to drug

trafficking offenses warranting sixteen- or twelve- level

increases, but also to aggravated felonies warranting eight-level

increases.71 The court concluded that applying one definition of

70
179 F. Supp. 2d 689 (W.D. Tex. 2001) (Justice, J.).
71
Id. at 692.

22
drug trafficking crimes to the sixteen- or twelve-level

enhancements and another to the aggravated felony enhancement would

violate the “accepted rule of statutory construction that

‘identical words used in different parts of the same act are

intended to have the same meaning’”:

Put more starkly, to properly sentence a defendant such
as this one for illegal re-entry, a court would have to
find that the defendant’s prior conviction both is and is
not a drug trafficking offense. It borders on the
irrational to assume that the Sentencing Commission–much
less Congress–would intend such an outcome.72

The district court also found that the Sentencing Commission

intended its recent revisions of the illegal reentry guidelines to

“respond to concerns about disproportionate sentences resulting

from an overbroad definition of ‘aggravated felony’ in previous

guidelines.”73 The Sanchez court concluded, “it is clear that the

Sentencing Commission intended to narrow the definition of

‘aggravated felony,’ in particular by carving out ‘drug trafficking

offenses’ and targeting them with a carefully crafted, graduated

scheme of penalties.”74

Utilizing different reasoning, a district court in the

Southern District of New York has concurred with the result reached

72
Id. at 691.
73
Id.
74
Id.

23
in Sanchez.75 In United States v. Ramirez, the court reasoned that,

if simple possession were truly a drug trafficking crime for

purposes of the aggravated felony enhancement, it should also be a

drug trafficking crime for purposes of the sixteen- and twelve-

level enhancement provisions that apply specifically to drug

trafficking crimes, a result the court deemed “Kafkaesque.”76

Contrary to Sanchez and Ramirez, we conclude that the

definition of “drug trafficking crime” found in § 2L1.2 does not

supercede that in 8 U.S.C. § 1101(a)(43) for purposes of the

aggravated felony enhancement. Although rendering the guideline

less clear than is desirable, § 2L1.2's implication of two distinct

definitions of drug trafficking crimes is neither repugnant to

principles of statutory construction nor inconsistent with the

Sentencing Commission’s prior practice. Looking to a parallel

situation within § 2L1.2, relating to the dual definitions of

“crimes of violence,” we note that the Sentencing Commission’s

practice of incorporating multiple definitions of the same term is,

it turns out, not new. The 2000 version of § 2L1.2 referenced

crimes of violence in two places. The first was in

§2L1.2(b)(1)(A), which provided that prior convictions for

aggravated felonies, as defined in 8 U.S.C. § 1101(a)(43),

75
United States v. Ramirez, No. 01-CR-888(DAB), 2002 WL
31016657 (S.D.N.Y. Sept. 9, 2002).
76
Id. at *2.

24
warranted a sixteen-level increase.77 Section 1101(a)(43) provides

that one type of aggravated felony is “a crime of violence (as

defined in section 16 of Title 18, but not including a purely

political offense) for which the term of imprisonment [is] at least

one year.”78 18 U.S.C. § 16, in turn, defines a crime of violence

as:

(a) an offense that has as an element the use, attempted
use, or threatened use of physical force against the
person or property of another, or
(b) any other offense that is a felony and that, by its
nature, involves a substantial risk that physical force
against the person or property of another may be used in
the course of committing the offense.79

However, crimes of violence were also mentioned explicitly in

§ 2L1.2(b)(1)(B), which provided a four-level increase if a

defendant had a prior conviction for three or more misdemeanor

“crimes of violence.”80 Application note 1 to the guideline

explained, “‘[c]rimes of violence’ ... are defined in § 4B1.2.”81

4B1.2 provided:

(a) The term “crime of violence” means any offense under
federal or state law ... that–
(1) has as an element the use, attempted use, or
threatened use of physical force against the person
of another, or

77
USSG § 2L1.2(b)(1)(A) & cmt. n.1 (2000).
78
§ 1101(a)(43)(F).
79
18 U.S.C. § 16 (1994).
80
USSG § 2L1.2(b)(1)(B) (2000) (emphasis added).
81
Id. cmt. n.1.

25
 (2) is burglary of a dwelling, arson, or extortion,
involves use of explosives, or otherwise involves
conduct that presents a serious potential risk of
physical injury to another.82

The two definitions of crimes of violence referenced in the

guideline differ most obviously in the categories of property

crimes included within their relative purviews. While the

definition found in § 16 includes all manner of crime that

threatens force against property, § 4B1.2 only includes those

property crimes that present the potential for serious harm to an

individual.

Previously presented with circumstances akin to those

contained in the case at hand, we have applied the 18 U.S.C. § 16

definition of “crimes of violence” in determining whether a

defendant’s prior crime constitutes an aggravated felony, despite

the application notes’ explicit reference to § 4B1.2's definition

of the term. For instance, in United States v. Chapa-Garza,83 we

explained that § 16, not § 4B1.2, presented the applicable

82
USSG § 4B1.2 (2000). The application notes add,

“Crime of violence” includes murder, manslaughter,
kidnapping, aggravated assault, forcible sex offenses,
robbery, arson, extortion, extortionate extension of
credit, and burglary of a dwelling. Other offenses are
included as “crimes of violence” if (A) that offense has
as an element the use, attempted use, or threatened use
of physical force against the person of another, or (B)
the conduct set forth ... in the court of which the
defendant was convicted involved use of explosives ...
or, by its nature, presented a serious potential risk of
physical injury to another.
83
243 F.3d 921 (5th Cir. 2001).

26
definition for crimes of violence that fall under the aggravated

felony enhancement. Furthermore, we rejected the government’s

argument that § 16 should be construed the same as § 4B1.2, noting

another obvious dissimilarity in the definitions:

Guideline 4B1.2(a)(2)’s “otherwise” clause contains
broader language than does section 16(b). Guideline
4B1.2(a)(2) only requires that the offense involve
conduct that poses a serious risk of physical injury to
another person. It does not require, as section 16(b)
does, that there be a substantial risk that the defendant
will use physical force against another’s person or
property in the course of committing the offense.
Guideline 4B1.2(a)(2)’s otherwise clause concerns only
the risk of one particular effect (physical injury to
another’s person or property) of the defendant’s conduct
itself, as there is no requirement that there be a
substantial risk that another’s person or property will
sustain injury, but only that there be a substantial risk
that the defendant will use physical force against
another’s person or property in the course of committing
the offense.84

As Chapa-Garza demonstrates, on prior occasions we have chosen to

apply the definition of “crime of violence” referenced in §

1101(a)(43), rather than the definition explicitly provided for in

the application notes, when the issue was whether a crime of

violence constituted an aggravated felony.85 We presume that the

Sentencing Commission had knowledge of this practice when it

drafted the 2001 amendments.

84
Id. at 925.
85
Cf. United States v. DeSantiago-Gonzalez, 207 F.3d 261, 263
(5th Cir. 2000) (applying § 4B1.2's definition of crime of violence
in determining whether defendant’s four-level enhancement under §
2L1.2(b)(1)(B)(ii) for having committed three prior misdemeanor
crimes of violence was proper).

27
 The Sentencing Commission has continued its practice of

referencing two definitions for crimes of violence. Like the 2000

version, the 2001 amendments to § 2L1.2 reference differing

definitions of the term. As with “drug trafficking crimes,”

“crimes of violence” are now explicitly defined in the application

notes to the 2001 version of § 2L1.2. The new definition provides:

“Crime of violence”–
(I) means an offense under federal, state, or local
law that has as an element the use, attempted use, or
threatened use of physical force against the person of
another; and
(II) includes murder, manslaughter, kidnapping,
aggravated assault, forcible sex offenses (including
sexual abuse of a minor), robbery, arson, extortion,
extortionate extension of credit, and burglary of a
dwelling.86

This definition, like the one provided in the application notes for

“drug trafficking offense,” is to be applied “[f]or purposes of

subsection (b)(1),” which includes all sentencing enhancement

provisions of § 2L1.2.87 Yet, as with drug trafficking offenses,

crimes of violence are still included within the purview of §

1101(a)(43) aggravated felonies. Section 1101(a)(43) still defines

crimes of violence according to 18 U.S.C. § 16. Thus, just as the

2000 Guidelines presented two different definitions for crimes of

violence, so does the 2001 version.

Although, at first glance, the Sentencing Guidelines’

inclusion of two separate definitions of crimes of violence and

86
USSG § 2L1.2 cmt. n.1(B)(ii) (2001).
87
Id. cmt. n.1(B).

28
drug trafficking crimes seems not only inexplicable but inherently

irrational, the Commission’s commentary to the 2001 amendments

intimates that its inclusion of the two definitions of crimes of

violence and drug trafficking offenses in the 2001 version of §

2L1.2 was purposeful. It explained,

This amendment responds to concerns raised by a number of
judges, probation officers, and defense attorneys ...
that § 2L1.2 ... 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....88

These statements reveal that the Commission intended the

guideline amendments to break up aggravated felonies by providing

for the sixteen-level increase only in the case of the more serious

offenses, e.g., murder or serious drug trafficking offenses for

which the sentence imposed was over 13 months, while providing

lesser penalties for the less serious, but still aggravated,

offenses, e.g., assault and simple drug possession. To create this

scheme, the Commission developed two categories of crimes of

violence and drug trafficking offenses, separating those acts that

88
USSG app. C, comment. to amend. 632 (2001).

29
are more serious from those that are less so. Therefore, the

narrow definitions of crimes of violence and drug trafficking

crimes found in the application notes, which are applicable to

explicit mentions of crimes of violence and drug trafficking

offenses in the provision requiring the sixteen- and twelve-level

enhancements, lists more severe types of these crimes. In

contrast, the broader definitions of crimes of violence and drug

trafficking offenses referenced in § 1101(a)(43) apply to less

severe aggravated felonies that warrant the eight-level

enhancement. Thus, contrary to the Sanchez court’s understanding,

the commentary to these amendments does not imply that crimes like

simple assault or simple drug possession should be erased

altogether from the category of aggravated felonies, which would be

the result if the narrower definition of “crimes of violence” and

“drug trafficking offenses” applied to both the sixteen- and eight-

level enhancements. Rather, the commentary makes clear that

amendments’ purpose was to apply a graduated scheme of penalties to

aggravated felonies depending on their severity.

IV

In conclusion, the district court did not err in basing its

sentencing determination on its finding that defendant committed a

“felony” and a “drug trafficking crime” for purposes of the

aggravated felony provisions contained in 8 U.S.C. § 1326(b)(2) and

Sentencing Guideline § 2L1.2.

30
AFFIRMED.

31