United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 30, 2005
_______________________ Charles R. Fulbruge III
Clerk
No. 03-40906
_______________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
OSCAR DANILO GARCIA-RODRIGUEZ,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
Before JONES, WIENER, and CLEMENT, Circuit Judges.
By EDITH H. JONES, Circuit Judge:
Defendant-Appellant Oscar Danilo Garcia-Rodriguez
(“Garcia”) appeals his sentence following his guilty plea for
illegal reentry by a felon, in violation of 8 U.S.C. §§ 1326(a) and
1326(b)(1). The district court sentenced Garcia to thirty-seven
months’ confinement, a three-year period of supervised release, and
a $100 special assessment. Garcia was sentenced on June 19, 2003,
and Final Judgment was entered on June 24, 2003. Garcia’s appeal
contends, for the first time, that the court miscalculated the
effect of his two probated felony drug convictions when applying
U.S.S.G. § 2L1.2(b)(1)(B). Finding no plain error, we AFFIRM.
Discussion
Garcia raises four challenges to his sentence. First,
Garcia claims the district court improperly imposed a twelve-level
enhancement under United States Sentencing Guidelines (U.S.S.G.)
§ 2L1.2(b)(1)(B) because his prior California felony conviction for
the sale or transportation of marijuana does not constitute a “drug
trafficking offense for which the sentence imposed was 13 months or
less” in light of existing precedent and a clarifying amendment to
the 2002 Sentencing Guidelines. Second, Garcia contends the
district court erred when it assessed one criminal history point
for each of Garcia’s two prior Texas misdemeanor theft convictions.
Third, Garcia contends his Sixth Amendment rights were violated
because he was sentenced under the mandatory Sentencing Guidelines
regime. Finally, Garcia argues, solely for purposes of
preservation of the argument pending Supreme Court review, that
Apprendi v. New Jersey, 530 U.S. 466 (2001) should be interpreted
to overrule Almendarez-Torres v. United States, 523 U.S. 224
(1998).1
Because all of these challenges are raised for the first
time on appeal, we review the claims only for plain error. United
States v. Chung, 261 F.3d 536, 539 (5th Cir. 2001). This court
finds plain error when: (1) there was an error; (2) the error was
1
As Garcia concedes, this last argument is precluded by existing
circuit precedent. See, e.g., United States v. Dabeit, 231 F.3d 979, 984 (5th
Cir. 2000).
2
clear and obvious; and (3) the error affected the defendant’s
substantial rights. United States v. Olano, 507 U.S. 725, 731-37,
113 S. Ct. 1770, 1776-79 (1993); United States v. Mares, 402 F.3d
511, 520 (5th Cir. 2005). “If all three conditions are met an
appellate court may then exercise its discretion to notice a
forfeited error but only if (4) the error seriously affects the
fairness, integrity, or public reputation of judicial proceedings.”
Mares, 402 F.3d (quoting United States v. Cotton, 535 U.S. 625,
631, 122 S. Ct. 1781, 1785 (2002)).
Garcia’s strongest claim of error is that the district
court’s interpretation of the Sentencing Guidelines improperly
applied a twelve-level enhancement to his sentence because of his
prior convictions. At the time Garcia was sentenced, the base
offense level for unlawfully entering or remaining in the United
States was eight. U.S.S.G. § 2L1.2(a) (2002). The Guidelines also
required enhancements to this base level depending on the specific
characteristics of the prior offense. For example, a sixteen-level
enhancement is applied for a prior conviction for “a felony that is
a drug trafficking offense for which the sentence imposed exceeded
13 months.” See id. at § 2L1.2(b)(1)(A)(i). A twelve-level
enhancement is applied if the prior felony drug trafficking
offense involved a sentence of thirteen months or less. Id. at
§ 2L1.2(b)(1)(B).
The district court applied the twelve-level enhancement
based on Garcia’s prior conviction in California for the sale or
3
transportation of marijuana, for which he was sentenced to
concurrent terms of three years’ probation. Garcia asserts that
this application of § 2L1.2 was erroneous and that he should have
received only an eight-level enhancement2 because his prior
probationary sentence does not fall within the scope of the
twelve-level enhancement provision. He successfully completed his
probationary sentence and thus spent no actual time in confinement,
consequently, he contends that this punishment does not constitute
a “sentence imposed” of thirteen months or less, as required by
§ 2L1.2(b)(1)(B).
Garcia’s contention that zero time behind bars but three
years on probation for an admitted felony is somehow not “13 months
or less,” while absurd at first blush, has some basis in the law.
Garcia relies on Application Note 1(A)(iv) to § 2L1.2, which
instructs that “[i]f all or any part of a sentence of imprisonment
was probated, suspended, deferred, or stayed, ‘sentence imposed’
refers only to the portion that was not probated, suspended,
deferred, or stayed.” Thus, Garcia contends that because his
2
Garcia claims that he should have received an eight-level enhancement
instead of the twelve-level enhancement because, although he concedes his prior
drug trafficking offense was an “aggravated felony,” he did not serve any time
in prison. § 2L1.2 requires an eight-level enhancement for “aggravated felonies.”
§ 2L1.2(b)(1)(C); see also U.S.S.G. § 2L1.2, comment n.2 (explaining that for
purposes of § 2L1.2(b)(1)(C), “‘aggravated felony’ has the meaning given that
term in 8 U.S.C. § 1101(a)(43)”). Garcia concedes that 8 U.S.C. § 1101(a)(43)
would define his California conviction as an “aggravated felony” under this
provision of the Guidelines. If the district court had applied only an eight-
level enhancement and calculated the rest of Garcia’s Guideline range in the same
manner, Garcia’s imprisonment range would have dropped to twenty-four to thirty
months instead of the thirty-seven to forty-six month imprisonment range deter-
mined by the district court.
4
entire sentence for the California conviction was probated, there
is no sentence at all to consider under § 2L1.2, and the
enhancement should not have been applied. Additionally, Garcia
correctly notes that we are bound to the plain meaning of an
Application Note unless it is inconsistent with the text of the
Guideline. United States v. Urias-Escobar, 281 F.3d 165, 167 (5th
Cir. 2002).
Moreover, in later amendments to § 2L1.2, effective
November 1, 2003, the Sentencing Commission purported to clarify
this Guideline with an amendment whose Application Note explains:
“Sentence imposed” has the meaning given the term
“sentence of imprisonment” in Application Note 2 and
subsection (b) of § 4A1.2 (Definitions and Instructions
for Computing Criminal History), without regard to the
date of conviction. The length of the sentence imposed
includes any term of imprisonment given upon revocation
of probation, parole, or supervised release.
U.S.S.G. § 2L1.2, comment n.1(B)(vii) (2003). Garcia contends that
had he been sentenced under the amended § 2L1.2, the district court
could not have applied the enhancement. Although Garcia was
sentenced on June 19, 2003, we “may consider” later changes to the
Guidelines “where . . . they are intended only to clarify a
guideline’s application.” United States v. Fitzhugh, 954 F.2d 253,
255 (5th Cir. 1992).
The Government responds that, taken in context, this
Application Note only refers to the calculation of sentences for
revocation of parole or probation, not to whether imprisonment is
required at all. Alternatively, if the Commission intended to
5
change the Guideline’s scope, then its amendment affects substance,
not clarity, and it cannot be retroactively applied. United States
v. Lopez-Coronado, 364 F.3d 622, 623-24 (5th Cir. 2004).
We need not wade into this interesting debate. Assuming
arguendo that the district court’s application of § 2L1.2 was
erroneous, whether viewed in light of the 2003 Amendment or not,
the dispositive question is whether the error was plain. “‘Plain’
is synonymous with ‘clear’ or ‘obvious,’ and at a minimum,
contemplates an error which was clear under current law at the time
of trial.” United States v. Hull, 160 F.3d 265, 271 (5th Cir.
1998) (quoting United States v. Calverley, 37 F.3d 160, 162-64 (5th
Cir. 1994) (en banc)) (additional internal quotations and marks
omitted). The key to this inquiry is how this court and other
courts interpreted § 2L1.2 when the district court sentenced
Garcia. Under plain error, if a defendant’s theory “requires the
extension of precedent, any potential error could not have been
‘plain.’” Hull, 160 F.3d at 272.
In United States v. Compian-Torres, 320 F.3d 514 (5th
Cir. 2003), this court considered whether a two-year sentence
imposed by a state court upon revocation of the defendant’s
probation qualified as a “sentence imposed” exceeding thirteen
months for purposes of the sixteen-level enhancement provision of
§ 2L1.2. We held that it was, and in so holding stated that “[t]he
plain language of the Guideline and Comment would require the court
to disregard the probated sentence (the ten-year terms), and not to
6
disregard the two years imposed upon revocation of probation.” Id.
at 516 (emphasis in original). While this language supports the
view urged by Garcia, the parties did not dispute the exclusion of
the probated sentences from the calculation. Compian-Torres is not
controlling.
Moreover, the Second Circuit, in a more analogous case,
has held against the proposition urged by Garcia. In United States
v. Mullings, 330 F.3d 123 (2d Cir. 2003), the court held that a
prior state court conviction for which the defendant was sentenced
to a non-custodial monetary fine was subject to the twelve-level
enhancement provision under § 2L1.2(b)(1)(B) as a sentence of “13
months or less.” Mullings, 330 F.3d at 124. The Second Circuit
concluded that the defendant’s non-custodial sentence was in effect
a sentence of “zero” months imprisonment, and that because zero is
less than 13 months, the non-custodial sentence fell within the
plain meaning of § 2L1.2(b)(1)(B). Mullings, 330 F.3d at 125. In
dicta, the Ninth Circuit has adopted this reasoning. See United
States v. Hernandez-Valdovinos, 352 F.3d 1243, 1249 (9th Cir. 2003)
(“A sentence of probation, with or without the two months’
incarceration, by definition is a sentence of 13 months or less.”)
(citing Mullings with approval).
This brief review of the legal landscape at the time of
Garcia’s sentencing demonstrates that if any error was committed by
the district court at sentencing, it was far from “plain.” Two
courts of appeals had interpreted the relevant provision in the
7
same manner as the district court, and this court’s law was
unsettled. Because the purported error was not plain, we reject
Garcia’s contention.
Additionally, Garcia cannot prevail on his claim that the
district court improperly included his two prior misdemeanor theft
offenses in his criminal history score. Garcia cites no authority
for his proposition, and further concedes that even if these two
criminal history points were subtracted from his score, his
criminal history score would have been properly categorized as a
level IV. There was no plain error in the criminal history
calculation. Cf. Hull, 160 F.3d at 271-72.
Finally, although Garcia was sentenced under the then-
mandatory Sentencing Guidelines,3 there was no plain error, because
Garcia cannot demonstrate that the error affected his substantial
rights.4 See Mares, 402 F.3d at 520. The district court denied
Garcia’s request for a downward departure, and made no comments
that could possibly indicate the district court would have imposed
a lesser sentence if it was not bound by the Guidelines. Cf.
United States v. Creech, 408 F.3d 264, 272 (5th Cir. 2005); United
States v. Valenzuela-Quevedo, 407 F.3d 728, 733 (5th Cir. 2005).
Conclusion
3
See generally United States v. Booker, 125 S. Ct. 738 (2005).
4
Garcia raises this argument for the first time in a supplemental,
28(j) letter filed after briefing was complete. We have permitted other
litigants to raise Booker challenges in this manner, so we address Garcia’s claim
as if it was raised in his opening brief and review for plain error. Cf. United
States v. Akpan, 407 F.3d 360, 375 n.48 (5th Cir. 2005).
8
Garcia’s conviction and sentence, and thus the judgment
of the district court, are AFFIRMED.
9