Case: 10-31110 Document: 00511735653 Page: 1 Date Filed: 01/25/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
January 25, 2012
No. 10-31110
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
RICARDO NEVARES-BUSTAMANTE,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Louisiana
Before HIGGINBOTHAM, STEWART, and HAYNES, Circuit Judges.
PATRICK E. HIGGINBOTHAM, Circuit Judge:
Ricardo Nevares-Bustamante appeals his 90-month sentence for illegal
reentry. The district court enhanced his sentence under U.S.S.G. §
2L1.2(b)(1)(A)(ii) (2009) because, in its view, the defendant unlawfully remained
in the United States after being convicted of a crime of violence. But Mr.
Nevares-Bustamate was not ordered removed after that predicate conviction.
Whether the sentencing enhancement should apply is a matter of first
impression in this Circuit.
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No. 10-31110
I.
Ricardo Nevares-Bustamante, a Mexican citizen, was removed from the
United States on March 1, 1989.1 About one month later, he illegally reentered
the United States by walking through the desert near Calexico, California. On
November 29, 1990, he was convicted in Missouri of rape and armed criminal
action and was sentenced to 18 years in prison. He served the sentence and was
released from the Missouri Department of Corrections on August 26, 2008. The
United States Border Patrol was not notified of his release, and no removal order
had been issued or reinstated following the 1990 conviction. On June 27, 2009,
United States Border Control officers found Nevares-Bustamante sleeping
behind a restaurant in Lake Charles, Louisiana. He was taken into custody that
day.
Nevares-Bustamante pleaded guilty to one count of illegal reentry
following deportation in violation of 8 U.S.C. § 1326(a), (b)(2). The presentence
report (PSR) recommended enhancing his offense level by 16 levels based on his
1990 Missouri conviction, which the PSR characterized as a crime of violence for
purposes of U.S.S.G. § 2L1.2(b)(1)(A)(ii). Nevares-Bustamante objected to the
PSR, arguing that the 16-level enhancement did not apply because he was not
ordered removed from the United States after his 1990 conviction.
On July 28, 2010, the district court overruled Nevares-Bustamante’s
objection to the 16-level enhancement. The district court found that, after
serving the sentence for his 1990 conviction, Nevares-Bustamante unlawfully
remained in the United States for purposes of the sentencing guideline.
During the final sentencing hearing, the district court applied the 16-level
enhancement and calculated a guidelines imprisonment range of 77 to 96
months. The district court then sentenced Nevares-Bustamante to 90 months
1
He had been deported twice before, in 1984 after a felony conviction for grand theft
auto, and in 1986 after a felony conviction for second degree burglary. The 1989 deportation
was based on a third felony conviction, for receiving stolen property.
2
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No. 10-31110
of imprisonment and three years of supervised release. Nevares-Bustamante
filed a timely notice of appeal.
II.
This Court reviews the district court’s interpretation of the Sentencing
Guidelines de novo.2
III.
On appeal, Nevares-Bustamante contends that the district court erred by
enhancing his offense level pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(ii) (2009) for
unlawfully remaining in the United States after a crime-of-violence conviction.
Nevares-Bustamante does not dispute that his 1990 Missouri conviction for rape
and armed criminal action constitutes a crime of violence under
§ 2L1.2(b)(1)(A)(ii). Instead, he argues that the 16-level enhancement did not
apply to him because no removal order issued after his 1990 conviction, nor had
any prior removal order been reinstated. We agree.
Section 2L1.2(b)(1)(A)(ii) provides for a 16-level enhancement “[i]f the
defendant . . . unlawfully remained in the United States, after . . . a conviction
for a felony that is . . . a crime of violence.” The application notes to § 2L1.2
explain that “[a] defendant shall be considered to have unlawfully remained in
the United States if the defendant remained in the United States following a
removal order issued after a conviction, regardless of whether the removal order
was in response to the conviction.”3 We see no inherent inconsistency between
the Guideline and the definition of “unlawfully remained” in its application note,
so we treat the application note as authoritative.4
2
See United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008).
3
U.S.S.G. § 2L1.2 cmt. n.1(A)(iii).
4
See Stinson v. United States, 508 U.S. 36, 38 (1993).
3
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The question then is whether Nevares-Bustamante “remained in the
United States following a removal order issued after a conviction.”5 This Court
has not previously been presented with that question,6 but a case from the First
Circuit is analogous.7 In that case, the defendant was deported, illegally
returned to the United States, and was subsequently convicted of an aggravated
felony.8 Just as in this case, he completed his sentence, was released from
custody, and a few months later was arrested and charged with illegal reentry.9
The Government argued in that case that the defendant “unlawfully ‘remained’
in the United States after his conviction,” reasoning that “his initial deportation
could serve as the basis for unlawfully remaining in the country subsequent to
his [aggravated felony] conviction because 8 U.S.C. § 1326(a) constitutes a
continuing offense.”10 The First Circuit rejected that argument, holding that the
sentencing enhancement did not apply. It reasoned that the Government’s
reading eliminated any temporal limitations in § 2L1.2, so that “it wouldn’t
matter whether the [relevant] removal occurred precedent to or subsequent to
the conviction. So long as the defendant had been previously deported, he would
5
U.S.S.G. § 2L1.2 cmt. n.1(A)(iii) (emphasis added).
6
The Government points to what it admits is dictum from a Fifth Circuit opinion that
appears to reach out and resolve cases like this one. See United States v. Bustillos-Pena, 612
F.3d 863, 869 n.3 (5th Cir. 2011). The Government ignores that the discussion in that footnote
assumes that a removal order had been issued following the relevant conviction, which was
not the case here. The facts of Bustillos-Pena gave no occasion for the Court to address the
specific circumstance presented here or the application note’s particular definition of
“unlawfully remained in the United States.”
7
United States v. Sanchez-Mota, 319 F.3d 1 (1st Cir. 2002) (per curiam).
8
Id. at 2.
9
Id.
10
Id. Title 8, § 1326(a) forbids an alien who was once removed from the country to
return to the United States without special permission.
4
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face a sentencing enhancement if he committed an aggravated felony.”11 The
First Circuit further explained that the application note to § 2L1.2 suggests that
the enhancement would apply “at most, to an alien who (a) commits an
aggravated felony, (b) is then subject to an order of deportation or removal, and
(c) doesn’t depart but instead remains in the United States unlawfully.”12 In
contrast, that defendant, like Nevares-Bustamante, “(a) was removed, (b)
returned illegally, and (c) was convicted of [the qualifying offense].”13 Under the
First Circuit’s reasoning, the defendant’s multiple prior deportations made no
difference; the deportation orders prior to his qualifying conviction did not make
his subsequent presence in the United States “unlawful” for the purposes of this
Guidelines provision. Without a fresh removal order or reinstatement of a prior
removal order, the court concluded, the defendant did not “unlawfully remain[]
in the United States following a removal order issued after a conviction.”14 We
find the First Circuit’s reasoning persuasive, and we adopt it here.
The Government’s response to the First Circuit’s reading is a textual
argument based on the indefinite article “a” preceding the word “conviction” in
the application note. To repeat, the application note to § 2L1.2 provides that “[a]
defendant shall be considered to have unlawfully remained in the United States
if the defendant remained in the United States following a removal order issued
after a conviction, regardless of whether the removal order was in response to
the conviction.”15 In the Government’s view, the application note does not
specify whether the “conviction” that precedes the removal order must
necessarily be the same conviction on which the enhancement is predicated. The
11
Id. at 3.
12
Id.
13
Id.
14
U.S.S.G. § 2L1.2 cmt. n.1(A)(iii).
15
Id. (emphasis added).
5
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Government suggests that the indefinite article “a” before the word “conviction”
means that any prior conviction could serve to predate the removal order, even
if it’s not the qualifying conviction.16 Moreover, according to this argument, it
would not matter that the prior removal order was unconnected to the predicate
conviction because the removal order need not be “in response to the
[enhancement-qualifying] conviction.”17 All three of Nevares-Bustamante’s prior
convictions were for aggravated felonies, and he was ordered removed after each
of them.18 Even though those convictions are not the basis for the enhancement,
the Government contends that they meet the application note’s requirement of
a conviction preceding a removal order.19
Seemingly persuasive because of its reliance on the plain terms of the
Guideline and its application note, the Government’s reading actually betrays
their language. As it gives a robust meaning to the indefinite “a,” the
Government’s interpretation robs any meaning from the arguably more
important word “remain,” at least as applied to Nevares-Bustamante. What
could it mean to “unlawfully remain[] in the United States . . . following a
removal order” if the defendant was in fact removed pursuant to that order?
Nevares-Bustamante did leave the United States each time he was ordered
removed. To say that he “unlawfully remained” here because he came back later
deprives the word “remain” of its natural meaning.
16
The Government did not make this argument in the First Circuit case because there
were no convictions preceding that defendant’s prior removal orders.
17
U.S.S.G. § 2L1.2 cmt. n.1(A)(iii).
18
See supra note 1 and accompanying text.
19
In addition to the textual analysis, there is some historical support for the
Government’s position. At one time, § 2L1.2 more clearly tied a removal order to the predicate
felony conviction. See U.S.S.G. § 2L1.2 cmt. n.1 (1997) (“‘Remained in the United States
following a removal order issued after a conviction,” means that the removal order was
subsequent to the conviction, whether or not the removal order was in response to such
conviction.” (emphasis added)).
6
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In sum, we hold that a defendant alleged to have unlawfully remained in
the United States following a qualifying conviction under U.S.S.G. §
2L1.2(b)(1)(A) is subject to the § 2L1.2(b)(1)(A) enhancement only when a
removal order is issued or reinstated after that conviction.
IV.
Mr. Nevares-Bustamante’s sentence is VACATED, and this case is
REMANDED for a new sentencing proceeding consistent with this Court’s
opinion.
7
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HAYNES, Circuit Judge, specially concurring:
Using only the language of the Guideline, it would seem that Nevares-
Bustamante “unlawfully remained in the United States” after a qualifying
conviction. U.S.S.G. § 2L1.2(b)(1)(A). He was convicted of a “crime of violence,”
he was discharged from prison, and he “remained” in the United States—without
any permission from the Attorney General or any other semblance of legal
authority—for almost a year after his release. If we could stop there, we would
likely affirm.
What causes this case to be more complex is the language of the
application note: “[a] defendant shall be considered to have unlawfully remained
in the United States if the defendant remained in the United States following a
removal order issued after a conviction, regardless of whether the removal order
was in response to the conviction.” Id. § 2L1.2 cmt. n.1(A)(iii). I agree that
Nevares-Bustamante did not “remain” in the United States following the
issuance or reinstatement of a removal order; he left each time he previously was
ordered removed, returning only later. Thus, under the application note, we
should reverse.
Faced with two potentially contradictory outcomes, we must decide
whether the application note is authoritative here. Stinson holds that
commentary such as the application note are authoritative unless “inconsistent
with, or a plainly erroneous reading of” the Guideline. See Stinson v. United
States, 508 U.S. 36, 38 (1993). The question then becomes whether the note is,
in fact, inconsistent with or a plainly erroneous reading of the Guideline.
I conclude that it is not. As construed by the majority opinion, the
application note provides a definition of “unlawfully remained” that is consonant
with the Guideline, objective, and relatively easy to verify. Requiring the
issuance or reinstatement of a removal order also avoids the necessity of mining
the murky depths of immigration law to determine the “unlawfulness” of a
defendant’s “remaining.” As such, I cannot find the application note to be
8
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“inconsistent” or “plainly erroneous,” although I do find it somewhat
conceptually incongruous with a commonsense understanding of what it means
to “unlawfully remain in the United States” after a conviction. Mindful of
Stinson’s teaching, however, I am obliged to concur in the majority’s opinion.1
1
Stinson also provides that Guidelines commentary “is authoritative unless it violates
the Constitution or a federal statute.” 508 U.S. at 38. The Government made no argument
that the application note runs afoul of this aspect of Stinson’s holding. Accordingly, neither
the majority opinion nor this concurrence addresses whether the application note at issue here
may “violate[] the Constitution or a federal statute.” Id.
9