United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT August 13, 2003
Charles R. Fulbruge III
Clerk
No. 02-41095
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE ZAVALA-MONTOYA,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. B-02-CR-134-1
Before GARWOOD, HIGGINBOTHAM and CLEMENT, Circuit Judges.
PER CURIAM:*
Jose Zavala-Montoya (Zavala) pleaded guilty to illegally
reentering the United States after having been deported, a
violation of 8 U.S.C. § 1326, and was sentenced to forty-six
months’ imprisonment and three years’ supervised release. He now
appeals his conviction and sentence.
Zavala argues that the district court erred in imposing an
*
Pursuan t to 5TH CIR. R.47.5 the Court has determined that this
opinion should not be published and is not precedent except under
the limited circumstances set forth in 5TH CIR. R. 47.5.4.
offense level increase of sixteen, under U.S.S.G. §
2L1.2(b)(1)(A)(ii) (2001), based on his prior conviction for
burglary of a habitation, for which he had been sentenced to
probation. Acknowledging that the sixteen-level increase was
warranted under the literal terms of the guideline, Zavala now
nonetheless suggests that, in amending section 2L1.2, the
Sentencing Commission could not have intended that a prior offense
that did not qualify as an “aggravated felony” under 8 U.S.C. §
1101(a)(43) – a felony for which the defendant had been sentenced
to one year or more in prison – could nevertheless result in a full
sixteen-level increase.
Interpretation of the Sentencing Guidelines is subject to
ordinary rules of statutory construction, and if the guideline’s
language is unambiguous, our inquiry begins and ends with an
analysis of the plain meaning of that language. See United States
v. Carbajal, 290 F.3d 277, 283 (5th Cir.), cert. denied, 123 S.Ct.
34 (2002). The only exception to this rule is when a clear
legislative intent to the contrary is shown, an exception that
applies only in “rare and exceptional circumstances.” See
Ardestani v. INS, 502 U.S. 129, 134-36 (1991).
Zavala concedes, however, that he did not object to his
sentence in the district court on the grounds that he now raises on
2
appeal and that our review is accordingly for plain error only.1
See United States v. Hickman, 331 F.3d 439, 443 (5th Cir. 2003).
An error is plain only “when it is clear or obvious and it affects
the defendant's substantial rights.” Id. Even in such a
situation, we will exercise discretion to reverse such error only
where it implicates the “fairness, integrity, or public reputation
of judicial proceedings.” Id. (quoting United States v. Cotton,
122 S.Ct. 1781 (2002)).
We have held that where a district court incorrectly applies
the Guidelines, such error, in many cases, seriously affects the
fairness, integrity, or public reputation of judicial proceedings.
United States v. Alarcon, 261 F.3d 416, 424 (5th Cir. 2001). The
initial question is whether the district court committed a clear or
obvious error in failing, in the absence of any invitation from the
defendant, to look beyond the plain language of section 2L1.2 to
conclude that the Sentencing Commission's intent in amending
section 2L1.2 dictated that Zavala receive only a four-level
enhancement.
1
Zavala did initially object to the sixteen-level
enhancement, but did so on the grounds that his prior burglary
conviction was not an aggravated felony since he was sentenced only
to probation. See United States v. Banda-Zamora, 178 F.3d 728, 730
(5th Cir. 1999) (“[W]hen a court does not order a period of
incarceration and then suspend it, but instead imposes probation
directly, the conviction is not an 'aggravated felony.'”).
Moreover, Zavala later withdrew this objection, conceding that it
would have no effect on the statutory maximum sentence to which he
would be exposed. Compare 8 U.S.C. § 1326(b)(1) with § 1326(b)(2).
3
Zavala relies on two earlier drafts of what would become the
current guideline section 2L1.2, as well as on Sentencing
Commission materials issued in connection with those drafts, to
support his interpretation of section 2L1.2. The materials Zavala
cites clearly establish that the 2001 amendments to section 2L1.2
were motivated by a concern that the prior version of section
2L1.2—which provided for only two categories of prior offenses and
either a four- or a sixteen-level enhancement—produced some
sentences disproportionate to the seriousness of the particular
underlying aggravated felony convictions. Accordingly, the
Commission amended section 2L1.2 in 2001 to provide for five
categories of prior offenses with corresponding sentence
enhancements ranging from four to sixteen levels. See U.S.S.G. §
2L1.2 (2001). Zavala also correctly notes that in organizing
offenses into difference categories, the Commission sought to
provide for increased punishments only for what it considered to be
the most serious felonies. Thus, the current version of section
2L1.2 still authorizes a sixteen-level enhancement, but does so
only for certain predicate felony offenses, including, among other
things, a felony that is a “crime of violence,” and states “‘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,
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aggravated assault, forcible sex offenses (including
sexual abuse of a minor), robbery, arson, extortion,
extortionate extension of credit, and burglary of a
dwelling.” U.S.S.G. § 2L1.2, Application Note 1.
In contrast to the above-quoted final version of section
2L1.2, the first proposed amendment to section 2L1.2, did not
attempt to provide for enhancements based on specific prior
offenses, but instead provided for enhancements of varying severity
based, in part, on the length of the term of imprisonment a
defendant actually served for a prior offense. See Proposed
Amendment: Unlawful Entering, 66 Fed. Reg. 7962, 8008–09 (Jan. 26,
2001). Thus, under the first draft of 2L1.2, a sixteen-level
enhancement was only available where the defendant's prior
conviction was an aggravated felony, and “(I) the defendant
actually served a period of imprisonment of at least ten years for
such conviction;” or “(II) the aggravated felony involved death,
serious bodily injury, the discharge or other use of a firearm or
dangerous weapon, or a serious drug trafficking offense.” Id.
Relying on this first proposed draft, Zavala argues that the
Commission clearly intended to measure the seriousness of a prior
conviction in terms of prison time served, and that it could not,
therefore, have intended that a sixteen-level enhancement be
imposed for his prior burglary offense, even where that offense
clearly falls within the literal definition of a crime of violence.
The second draft version of 2L1.2 also lends some support to
Zavala's argument. Although the second proposed version of 2L1.2,
5
abandoned the previous draft's primary focus on the length of
incarceration, it nevertheless emphasized actual terms of
imprisonment imposed for a prior conviction, imposing an
enhancement, in certain cases, only where the defendant had been
sentenced to thirteen months' imprisonment for a prior offense.
Thus, under the second proposed draft of section 2L1.2, a sixteen-
level enhancement would only have been available for, among other
things,
“(A) a conviction for (I) a serious drug offense [for
which the sentence imposed was not less than 13 months];
(ii) a crime of violence [for which the sentence imposed
was not less than 13 months]; (iii) a felony that is a
child pornography offense, or (iv) a felony that is a
firearms offense . . . .” United States Sentencing
Commission, Revised Proposed Amendment: Unlawfully
Entering (Mar. 29, 2001).
Zavala thus correctly notes that under either of the first two
proposed versions of section 2L1.2, his burglary offense would not
have subjected him to a sixteen-level enhancement, and argues that
the same burglary offense, therefore, should also not subject him
to such an enhancement under the final version.
It is not altogether clear, however, that the Sentencing
Commission did not also intend for a sixteen-level enhancement to
be applied for certain offenses even where a prior conviction for
those offenses did not result in a significant term of
incarceration. Thus, in connection with the first proposed draft
discussed above, the Commission noted that a sixteen-level
enhancement “would be triggered not only by the period of
6
imprisonment actually served but also by all aggravated felonies
involving death, serious bodily injury, the discharge or other use
of a firearm or dangerous weapon, or a serious drug trafficking
offense, regardless of the period of imprisonment actually served
by the defendant.” Proposed Amendment: Unlawful Entering, 66 Fed.
Reg. 7962, 8008–09 (Jan. 26, 2001) (emphasis added). Indeed, we
have previously noted, in interpreting section 2L1.2, that the
Commission clearly intended, in singling out certain crimes to
result in substantial enhancement, to identify and to punish those
offenses that are “inherently violent or forceful, or inherently
risk violence and the use of force.” United States v. Rayo-Valdez,
302 F.3d 314, 317 (5th Cir. 2002).2 Burglary of a dwelling is
certainly such a crime. See United States v. Flores, 875 F.2d
1110, 1113 (5th Cir. 1989) (“Whenever a private residence is broken
into, there is always a substantial risk that force will be
used.”). In addition, the Commission's final changes to section
2L1.2 undermine Zavala's argument that the Commission intended to
limit “crimes of violence” to only prior offenses that resulted in
substantial terms of imprisonment, and that its failure to do so
expressly was merely inadvertent. The Commission retained, in the
2
See also United States v. Alvarenga-Silva, 324 F.3d 884,
887 (7th Cir. 2003) (“The Sentencing Commission likely enumerated
certain serious offenses (like sexual abuse of a minor and burglary
of a dwelling), rather than resting on a general definition [of
“crime of violence”], to ensure that those particular offenses
would be treated as crimes of violence regardless of variations in
state statutory elements.”).
7
final version of section 2L1.2, such a limitation on the category
of serious drug offenses justifying a sixteen-level enhancement,
while a similar requirement, present in the second proposed draft
of 2L1.2, is noticeably absent in the final version of section
2L1.2 with respect to crimes of violence. Compare U.S.S.G. §
2L1.2(b)(1)(A)(i) (2001), with § 2L1.2(b)(1)(A)(ii).
Despite such conflicting evidence of the Commission's intent,
we need not ultimately resolve whether Zavala's interpretation of
the 2001 amendments to section 2L1.2 is the correct one. Indeed,
because the evidence of the Commission's intent behind the 2001
amendment is not unequivocal, we cannot say that the district court
committed clear error by refusing to look to the Commission's
intent and instead adhering to a literal application of section
2L1.2 to Zavala's offense. See United States v. Garcia-Hernandez,
No. 02-41580 (5th Cir. June 4, 2003) (unpublished); Alvarenga-
Silva, 324 F.3d at 888 (refusing to rely on interpretations of the
Commission's intent or to look beyond the plain language of section
2L1.2); see also United States v. Diaz-Diaz, 327 F.3d 410, 415 (5th
Cir. 2003) (declining to find clear error in the district court's
application of an ambiguous provision of the Sentencing
Guidelines); United States v. Hernandez-Gonzales, 318 F.3d 1299,
1302 (11th Cir. 2003) (declining to overturn, on plain error
review, a district court's interpretation of U.S.S.G. § 2L1.2, and
noting instead that “[a]n error cannot be plain if such error is
8
not obvious or clear under current law.”).
Zavala also contends that 8 U.S.C. § 1326(b) is
unconstitutional on its face under Apprendi v. New Jersey, 530 U.S.
466 (2000), in that the felony “element” of the offense need no be
submitted to the factfinder for proof. As Zavala concedes,
however, this contention is foreclosed by the caselaw of this court
and by Apprendi. See United States v. Dabeit, 231 F.3d 979, 984
(5th Cir. 2000) (noting that the Supreme Court in Apprendi
expressly declined to overrule Almendarez-Torres v. United States,
523 U.S. 224 (1998)). Zavala raises this issue only to preserve it
for possible review by the Supreme Court.
For the foregoing reasons, Zavala’s conviction and sentenced
are
AFFIRMED.
9