IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 26, 2009
No. 08-40708
Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
OSCAR RODRIGUEZ-PARRA,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
Before HIGGINBOTHAM, SMITH, and SOUTHWICK, Circuit Judges.
JERRY E. SMITH, Circuit Judge:
Oscar Rodriguez-Parra pleaded guilty of illegally reentering the United
States. He appeals his sentence, and we affirm.
I.
Rodriguez-Parra, a Mexican citizen, was convicted in Texas in 1994 of de-
No. 08-40708
livery of marihuana and was sentenced to five years’ imprisonment, but the
sentence was suspended with five years’ probation. Rodriguez-Parra did not
serve any of his sentence in jail. He was later deported.
Rodriguez-Parra re-entered the United States without the consent of the
Attorney General or Secretary of Homeland Security. In 2007, customs agents
found him in a Texas county jail. He pleaded guilty of being in the United States
following deportation subsequent to conviction for an aggravated felony, in viola-
tion of 8 U.S.C. § 1326(a) and (b)(2).
Using the 2007 edition of the sentencing guidelines, the presentence report
(“PSR”) began with a base offense level of 8 under U.S.S.G. § 2L1.2(a). It im-
posed a twelve-level increase under § 2L1.2(b)(1)(B)1 because of Rodriguez-Par-
ra’s previous felony conviction. The offense level was reduced by three for accep-
tance of responsibility, for a net offense level of 17. That, combined with Rodri-
guez-Parra’s criminal history category, resulted in a guideline range of 46 to 57
months’ imprisonment.2 The court sentenced Rodriguez-Parra to 46 months in
prison and a three-year term of supervised release.
II.
Rodriguez-Parra claims that the twelve-level enhancement is reversible
error. He objects that his earlier conviction cannot be used to enhance the sen-
tence, because the sentence was entirely suspended.
Because Rodriguez-Parra raises this argument for the first time on appeal,
1
“If the defendant previously was deported, or unlawfully remained in the United
States after . . . (B) a conviction for a felony drug trafficking offense for which the sentence im-
posed was 13 months or less, increase by 12 levels.”
2
Rodriguez-Parra filed a response to the PSR, objecting to the twelve-level enhance-
ment under the theory that his prior conviction was not a drug trafficking offense, because “de-
livery” under Texas law includes offers to sell. The court overruled that objection, and Rodri-
guez-Parra does not object to that ruling on appeal.
2
No. 08-40708
we review for plain error. “To establish plain error, [the defendant] is required
to show that (1) there was error, (2) the error was plain, (3) the error affected his
substantial rights, and (4) the error seriously affected the fairness, integrity or
public reputation of judicial proceedings.” United States v. Redd, 562 F.3d 309,
314 (5th Cir. 2009) (internal quotation marks and citation omitted).
A.
We must first decide whether there was error. The court enhanced under
§ 2L1.2(b)(1)(B), which increases a sentence by twelve levels “[i]f the defendant
previously was deported, or unlawfully remained in the United States, after
. . . a conviction for a felony drug trafficking offense for which the sentence im-
posed was 13 months or less.” Because the sentence was entirely suspended in
favor of probation, we must determine whether it is a “sentence imposed” for
purposes of § 2L1.2.
Section 2L1.2’s application notes answer that question.3 “‘Sentence im-
posed’ has the meaning given the term ‘sentence of imprisonment’ in Application
Note 2 and subsection (b) of § 4A1.2.” U.S.S.G. § 2L1.2 Application Note
1(B)(vii). Section § 4A1.2 states,
(1) The term ‘sentence of imprisonment’ means a sentence of incar-
ceration and refers to the maximum sentence imposed.
(2) If a part of a sentence of imprisonment was suspended, ‘sentence
of imprisonment’ refers only to the portion that was not suspended.
Under subsection (2), therefore, the suspended portion of a sentence is not
part of a “sentence of imprisonment.” Thus, if all of Rodriguez-Parra’s sentence
was suspended, there is no remaining portion of the sentence that could refer to
3
Application notes are given controlling weight so long as they are not plainly errone-
ous or inconsistent with the guidelines. See United States v. Urias-Escobar, 281 F.3d 165, 167
(5th Cir. 2002).
3
No. 08-40708
“sentence of imprisonment.” Application note two confirms this: “To qualify as
a sentence of imprisonment, the defendant must have actually served a period
of imprisonment on such sentence.” U.S.S.G. § 4A1.2 Application Note 2 (empha-
sis added).
There is caselaw that supports this conclusion. In United States v. Brown,
54 F.3d 234, 240 (5th Cir. 1995), we examined what constituted a “sentence of
imprisonment” under § 4A1.2. That term “require[s] that . . . some time actually
be served on the sentence.” Id. The only other court of appeals to examine this
issue after the 2003 guideline amendments reached the same conclusion.4 Be-
cause all of Rodriguez-Parra’s sentence was suspended, his prior sentence did
not meet the requirements for “sentence imposed” under the guidelines, so there
was error under the first prong of the plain-error rubric.5
B.
We must therefore decide whether the sentencing error was plain. See
Redd, 562 F.3d at 314. There is no plain error if the legal landscape at the time
showed the issue was disputed, even if, as here, the district court turns out to
have been wrong. United States v. Ellis, 564 F.3d 370, 377 (5th Cir. 2009).
Here the path to resolving the issue is at least somewhat complicated. The
commentary to § 2L1.2 directed the reader to § 4A1.2 and application note 2,
which stated that “the defendant must have actually served a period of impri-
sonment.” U.S.S.G. § 4A1.2 Application Note 2. In Brown, 54 F.3d at 240, we
had indicated that for the enhancement to apply, the defendant must have actu-
ally served time in prison. In addition, Alvarez-Hernandez, 478 F.3d at 1066,
4
See United States v. Alvarez-Hernandez, 478 F.3d 1060, 1064-66 (9th Cir. 2006).
5
The government does not argue that the enhancement was correct but instead dedi-
cates its brief to contending the error is not plain.
4
No. 08-40708
stated that the § 2L1.2(b)(1)(B) enhancement should not be applied.
The government, however, presents several arguments for why the error
is not plain. First, it points out that no panel of this court has found that
“sentence imposed” under § 2L1.2(b)(1)(B) requires that time be served in prison.
We need not address that reason, because the government points, more convinc-
ingly, to Garcia-Rodriguez, 415 F.3d at 454, in which we examined whether a
court committed plain error when it enhanced a sentence under § 2L1.2.
In Garcia-Rodriguez, the defendant had been convicted in California on a
drug offense and sentenced to three years’ probation. Id. The district court used
the earlier conviction to enhance, despite the fact that the defendant had not
been imprisoned as a result of the earlier conviction. Id. Focusing on the same
“sentence imposed” language from § 2L1.2 that we are currently reviewing, we
held that the enhancement was not plain error. Id. at 456.
Rodriguez-Parra distinguishes Garcia-Rodriguez on the ground that there
we relied on United States v. Mullings, 330 F.3d 123 (2d Cir. 2003), and United
States v. Hernandez-Valdovinos, 352 F.3d 1243 (9th Cir. 2003), which were de-
cided under the pre-2003 sentencing guidelines. Those guidelines defined “sen-
tence imposed” as follows: “If 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.” U.S.S.G. § 2L1.2
comment. n.1(A)(iv) (Nov. 2002).
That definition was deleted from the 2003 and 2007 guidelines, the latter
of which applies to Rodriguez-Parra. Now, a sentence of imprisonment is de-
fined as “a sentence of incarceration and refers to the maximum sentence im-
posed.” § 4A1.2(b)(1). Under § 4A1.2(b)(2), “if a part of a sentence of imprison-
ment was suspended, ‘sentence of imprisonment’ refers only to the portion that
was not suspended.”
The difficulty in Rodriguez-Parra’s argument for plain error is that in Gar-
5
No. 08-40708
cia-Rodriguez, 415 F.3d at 455, this court acknowledged the existence of the
2003 amendments but held, nonetheless, that (relying also on Mullings and Her-
nandez-Valdovinos) the lack of Fifth Circuit controlling authority on the issue
meant that there was not plain error. Id. at 456. The presence of Garcia-Rodri-
guez as binding precedent means, therefore, that the resolution of Rodriguez-
Parra’s sentencing issue is less than obvious. There have been no changes in
this court’s interpretation of § 2L1.2(b)(1)(B) since Garcia-Rodriguez, and the
applicable guideline has not changed since 2003.6
We conclude, as stated above, that there was error. That result is reached,
however, only by a careful parsing of all the relevant authorities, including the
sentencing guidelines and applicable decisions. “[T]o satisfy the second prong
of plain error inquiry, ‘the legal error must be clear or obvious, rather than sub-
ject to reasonable [dispute].’” Ellis, 564 F.3d at 377-78 (quoting Puckett v. Unit-
ed States, 129 S. Ct. 1423, 1429 (2009)). Here the result is reached only by tra-
versing a somewhat tortuous path. That path, moreover, would have been more
straight and level had Rodriguez-Parra made his objection in the district court,
thus allowing each side to present its arguments on the question now at hand.
This is the very point of the plain-error standardSSit “serves powerful institu-
tional interests, including securing the role of the United States District Court
as the court of first instance.” Id. at 378.
For these reasons, Rodriguez-Parra’s claim of plain error fails at the sec-
ond prong, so we do not examine the remaining prongs. The judgment of sen-
tence is AFFIRMED.
6
In United States v. Camarillo-de la Cruz, 174 Fed. App’x 244, 245 (5th Cir. 2006) (per
curiam), this court, on plain-error review, held that Garcia-Rodriguez remained the controlling
authority on the application of “sentence imposed” under § 2L1.2(b)(1)(B).
6