[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 04-11155 ELEVENTH CIRCUIT
JUNE 2, 2005
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
D. C. Docket No. 03-20650-CR-PAS
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ELVIS FREDY CAMACHO-IBARQUEN,
a.k.a. Albert Carbonell,
a.k.a. Carlos Vega,
a.k.a. Daniel Canales,
a.k.a. Alberto Contrara,
a.k.a. Freddy Sanchez,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(June 2, 2005)
ON PETITION FOR REHEARING
Before TJOFLAT, DUBINA and CARNES, Circuit Judges.
PER CURIAM:
In his petition for rehearing Elvis Fredy Camacho-Ibarquen objects to
footnote four in our opinion, United States v. Camacho-Ibarquen, 404 F.3d 1283,
1290 n.4 (11th Cir. 2005). That is where we said that because Camacho’s
argument was that there was Booker constitutional error and as a result he should
be resentenced without the extra-verdict enhancement, we would not force upon
him a remand on Booker statutory grounds which would involve resentencing with
the enhancement and might lead to a higher sentence.
According to his rehearing petition, Camacho prefers a remand for
resentencing on Booker statutory grounds to none at all. In light of that, we vacate
our prior opinion in this appeal and substitute for it the following discussion,
which is different only in that it deletes footnote four, inserts a new part IV, and
adds a sentence to the newly re-numbered Part V.
Except in this regard, Camacho’s petition for rehearing is DENIED.
Elvis Fredy Camacho-Ibarquen, a Columbian citizen, appeals from his
seventy-seven-month sentence for attempting to re-enter the United States after a
previous deportation, in violation of 8 U.S.C. §§ 1326(a), (b)(2). He contends that
2
the district court erred by imposing a sixteen-level enhancement pursuant to
United States Sentencing Guidelines § 2L1.2(b)(1)(A)(ii) because he entered the
United States after having been deported subsequent to a conviction for a crime of
violence. Specifically, Camacho argues that § 2L1.2(b)(1)(A)(ii) applies only to
offenses for which the conviction occurred within the previous ten years and that,
because the previous crimes for which he was convicted occurred more than ten
years ago, he should have received only an eight-level enhancement under
U.S.S.G. § 2L1.2(b)(1)(C). Camacho also contends that his sentence is
unconstitutional in light of Blakely v. Washington, 542 U.S. __, 124 S. Ct. 2531
(2004) and United States v. Booker, 543 U.S. ___, 125 S. Ct. 738 (2005). We
hold that U.S.S.G. § 2L1.2(b)(1)(A)(ii) has no time limit with regard to the date of
conviction and that Camacho’s sentence does not violate the Sixth Amendment.
I.
In July 2003, Camacho boarded the vessel M/V MENDIONDO in San
Andres, Colombia as a stowaway in order to gain entry into the United States.
Prior to the ship’s arrival at the Port of Miami, agents from the Bureau of Customs
and Border Protection boarded the ship and took Camacho into custody.
Camacho, a citizen of Colombia, had been deported from the United States to
3
Columbia on three previous occasions—twice from Miami, Florida and once from
New Orleans, Louisiana.
A federal grand jury issued a two-count indictment. Count one charged
Camacho with being a stowaway on board a vessel in the jurisdiction of the United
States, in violation of 18 U.S.C. § 2199. Count two charged Camacho with
knowingly and unlawfully entering the United States after having been previously
deported, in violation of 8 U.S.C. §§ 1326(a), (b)(2). In exchange for Camacho
pleading guilty to count two, the government agreed to dismiss count one.
In the course of being sentenced, Camacho was assigned a base offense
level of eight under U.S.S.G. § 2L1.2(a), but he received a sixteen-level
enhancement based on two previous convictions that were considered “crimes of
violence” under U.S.S.G. § 2L1.2(b)(1)(A)(ii). With a three-point reduction for
acceptance of responsibility and a criminal history category of VI, the guidelines
produced a sentencing range of seventy-seven to ninety-six months.
The first conviction that the district court found to be a “crime of violence”
under U.S.S.G. § 2L1.2(b)(1)(A)(ii) occurred in 1985, when Camacho was
convicted in Florida for resisting an officer with violence, battery of a law
enforcement officer, and carrying a concealed weapon. The other “crime of
violence” occurred in 1988, when Camacho was convicted in Massachusetts for
4
carrying a firearm without a license, possession of a firearm without a firearm
identification, and assault and battery by a dangerous weapon.
Camacho objected to the sixteen-level enhancement during the sentencing
hearing. He argued that his convictions are not “crimes of violence” under
U.S.S.G. § 2L1.2(b)(1)(A)(ii) because a conviction over ten years old is not
counted as a “crime of violence” and his convictions occurred over ten years prior
to his current offense. The district court overruled Camacho’s objection, finding
that “the clear language of the Guidelines” required imposing
§ 2L1.2(b)(1)(A)(ii)’s sixteen-level enhancement. Camacho now appeals from the
district court’s ruling, renewing his argument that U.S.S.G. § 2L1.2(b)(1)(A)(ii)
applies only to offenses for which the conviction occurred no more than ten years
before the current offense.
II.
“We review purely legal questions concerning use of the Sentencing
Guidelines de novo.” United States v. Murrell, 368 F.3d 1283, 1285 (11th Cir.
2004).
A.
5
U.S.S.G. § 2L1.2 sets the base offense level for “Unlawfully Entering or
Remaining in the United States” at eight. U.S.S.G. § 2L1.2(a). Section
2L1.2(b)(1) then directs the district court to:
Apply the Greatest:
If the defendant previously was deported, or unlawfully remained in the
United States, after—
(A) a conviction for a felony that is (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, increase by 16 levels;
(B) a conviction for a felony drug trafficking offense for which the
sentence imposed was 13 months or less, increase by 12 levels;
(C) a conviction for an aggravated felony, increase by 8 levels;
(D) a conviction for any other felony, increase by 4 levels; or
(E) three or more convictions for misdemeanors that are crimes of
violence or drug trafficking offenses, increase by 4 levels.
Neither the text of § 2L1.2 nor the application notes that follow state that “a
conviction” must have occurred within a particular time period before the current
offense for the relevant enhancement listed in § 2L1.2(b)(1)(A)–(E) to apply. The
application notes do explicitly state that two of the terms used in § 2L1.2(b)(1),
“sentence imposed” and “aggravated felony,” apply without regard to the date of
6
the underlying conviction. See U.S.S.G. § 2L1.2, application nn.1(B)(vii), 3(A).
As with many other terms used in § 2L1.2, the definitions of those two terms are
imported from other provisions.
Application Note 1(B)(vii) to § 2L1.2 states that: “‘Sentence imposed’ has
the meaning given the term ‘sentence of imprisonment’ in Application Note 2 and
subsection (b) of § 4A1.2 . . . , without regard to the date of the conviction.”
Section 4A1.2 is located in the criminal history section of the sentencing
guidelines.
Similarly, Application Note 3(A) to § 2L1.2 states that “‘aggravated felony’
has the meaning given that term in section 101(a)(43) of the Immigration and
Nationality Act (8 U.S.C. § 1101(a)(43)), without regard to the date of conviction
for the aggravated felony.”
Camacho asks us to apply the principle of expressio unius est exclusio
alterius. He contends that, because two terms in § 2L1.2 have explicit language
directing that they apply without regard to the date of the conviction, the
remainder of the operative terms have an implied restriction on the time period
from which convictions can be considered.1 He further contends that the method
1
Camacho also argues that the 2003 amendment to § 2L1.2, which added language in an
application note clarifying that the term “sentence imposed” is to be calculated without regard to
the date of conviction, is a substantive change and, as a result, cannot be applied to him. The
7
for calculating this implied age limit on convictions should be borrowed from the
criminal history section of the sentencing guidelines. If we agreed, the only
convictions that could be used to enhance under § 2L1.2(b)(1) would be those that
occurred within ten years of committing the current offense and those that
explicitly direct that they are applicable without regard to the date of conviction.
According to Camacho, § 2L1.2(b)(1)(A)(ii), which does not explicitly state
that any conviction can be used regardless of the date, was improperly applied to
him because the convictions on which the enhancement was based occurred more
than ten years ago. He contends that his convictions qualify only as “aggravated
felonies” under § 2L1.2(b)(1)(C), which directs an eight-level enhancement and
has language in the application notes stating that aggravated felonies are
considered without regard to the date of the conviction. Camacho concludes by
arguing that, at the least, § 2L1.2 is ambiguous and the rule of lenity requires this
sentencing guidelines commentary makes clear that the 2003 amendments to § 2L1.2 made no
substantive changes. See U.S.S.G. amend. 658, app. C, vol. II at 401 (stating that the reason for
the 2003 amendments was to “clarify[] the meaning of some of the terms used in § 2L1.2(b)(1)”).
Because the 2003 amendments are not substantive, i.e. they do not lead to the imposition of
harsher penalties, we apply § 2L1.2 as it existed when Camacho was sentenced on March 2,
2004. See 18 U.S.C. § 3553(a); United States v. Simmons, 368 F.3d 1335, 1338 (11th Cir.
2004). In any event, whether the application note clarifying the term “sentence imposed” made a
substantive change has no impact on the determination of whether § 2L1.2(b)(1)(A)(ii) has a time
period restriction.
8
Court to apply the less harsh eight-level enhancement for “aggravated felonies”
under § 2L1.2(b)(1)(C).
With regard to the principle of statutory construction that the mention of
one thing implies the exclusion of another, or expressio unius est exclusio alterius,
its application has been described as “‘an aid to construction, not a rule of law. It
is not conclusive, is applicable only under certain conditions, is subject to
exceptions, may not be used to create an ambiguity, and requires great caution in
its application.’” United States v. Castro, 837 F.2d 441, 443 n.2 (11th Cir. 1988)
(quoting 73 Am. Jur. 2d Statutes § 212, at 405–06). Furthermore, “[w]e will not
read into the guidelines and their commentaries requirements that are not stated, or
at least fairly implied, in them. And that is especially true where doing so would
produce questionable results.” United States v. Olshan, 371 F.3d 1296, 1300
(11th Cir. 2004).
The application of expressio unius in the way suggested by Camacho would
produce “questionable results.” The most obvious problem is that if the
Sentencing Commission had intended § 2L1.2(b)(1)(A)–(E) to mean what
Camacho argues, there is no reason the Commission would not have written an
explicit time restriction into that guideline. The Commission obviously knew how
to explicitly limit the application of certain convictions, as it did so with regard to
9
convictions that occurred when the defendant was a minor. See U.S.S.G. § 2L1.2,
application n.1(A)(iv). Other guidelines sections, such as § 4A1.2(e) in the
criminal history section, also include explicit time restrictions on the application
of certain convictions. We are more inclined to find that, because other guidelines
sections have explicit time restrictions on the application of convictions, the
omission of such a restriction in § 2L1.2 means that none was intended for that
section.
Another “questionable result” would follow from reading a time restriction
into § 2L1.2. See Olshan, 371 F.3d at 1300. Section 2L1.2 gives no guidance as
to what time-period limitation we should read into the otherwise unrestricted
terms. We find it highly unlikely that the Sentencing Commission intended that
§ 2L1.2 should have a time period restriction of unspecified length. Camacho
argues that the time period limitation provisions from the criminal history section
of the guidelines should be imported into § 2L1.2. But there is no reason to
choose these provisions over any others. See United States v. Adeleke, 968 F.2d
1159, 1161 (11th Cir. 1992); see also United States v. Gonzalez, 112 F.3d 1325
(7th Cir. 1997) (refusing to apply the criminal history section’s 15-year limitation
on foreign convictions to the aggravated felony enhancement under former §
2L1.2(b)(2)).
10
There is another reason to conclude that there is no time limitation that
applies to all of the § 2L1.2 provisions without explicit language to the contrary.
Recall that the definitions of “sentence imposed” and “aggravated felony,” the two
terms in § 2L1.2 with the “date of conviction” language, are imported from
provisions outside of § 2L1.2. See U.S.S.G. § 2L1.2, application nn.1(B)(vii),
3(A). Each of those provisions has language limiting the time period in which
certain kinds of convictions can apply. It is entirely possible, indeed likely, that
the Sentencing Commission wanted to import into § 2L1.2 the substantive
definitions from these other provisions, but not the time limitations they contain,
and that is the reason it added the “without regard to the date of conviction”
language in the application notes defining “sentence imposed” and “aggravated
felony.”
Application Note 1(B)(vii) of § 2L1.2 imports the definition of “sentence
imposed” from U.S.S.G. § 4A1.2, which is part of the criminal history section of
the guidelines. In addition to giving a substantive definition, § 4A1.2 limits the
convictions that can be used in calculating a defendant’s criminal history score.
Under § 4A1.2, if the sentence imposed for a conviction was over one year and
one month, then the conviction is counted if it occurred within fifteen years; all
other convictions are counted if they occurred within ten years. U.S.S.G.
11
§ 4A1.2(e). In drafting § 2L1.2, the Sentencing Commission chose to import
§ 4A1.2’s definition of “sentence imposed,” but not to import § 4A1.2’s time
restriction on applicable convictions. It accomplished that with language
explaining that the definition of “sentence imposed” is imported from the criminal
history section but “without regard to the date of the conviction.” U.S.S.G.
§ 2L1.2, application n.1(B)(vii). In other words, the Sentencing Commission
imported that portion of the criminal history section’s definition that it wanted to
apply, which is the substantive definition, and it expressly ruled out that portion it
did not want to apply, which is the time-period restriction. See United States v.
Stultz, 356 F.3d 261, 268–69 (2d Cir. 2004) (rejecting the argument that because
some definitions of terms in § 2L1.2’s application notes do not have the “without
regard to the date of conviction” language, “this omission means that the date of
conviction is fair grounds for downward departure for any felonies listed in
subsections (A) and (B)”).
Similarly, § 2L1.2 imported the definition of “aggravated felony” from the
Immigration and Nationality Act. U.S.S.G. § 2L1.2, application n.3(A). Under
the INA’s definition of “aggravated felony,” the applicability of foreign
convictions is limited to those where the term of imprisonment was completed
within the previous fifteen years. See 8 U.S.C. § 1101(a)(43). Because it wanted
12
only the substantive definition of “aggravated felony” to apply to § 2L1.2, the
Sentencing Commission included express language stating that the conviction was
to be counted regardless of the date when it occurred.
No other definition of a term in § 2L1.2 that was imported from a different
statute had attached to it a provision that, if not explicitly addressed, might suggest
that only convictions occurring within a particular time-frame would be applied in
§ 2L1.2(b)(1).2 As a result, there was no need to include language in any other
2
Although there are two terms other than “sentence imposed” and “aggravated felony” in
§ 2L1.2’s application notes that import terms from statutes that have within them an age
limitation for applicable convictions, there was no need to include express language in the
application notes to make it clear that the convictions they are referring to are applied in
§ 2L1.2(b)(1) without regard to the date of conviction.
Like the application note defining “aggravated felony,” the application note defining
“alien smuggling offense” imports the definition from INA § 101(a)(43). See U.S.S.G. § 2L1.2,
application nn.1(B)(i), 3(A). However, unlike an “aggravated felony,” an “alien smuggling
offense,” by definition, cannot be a violation of the law of a foreign country. See 8 U.S.C.
§ 1101(a)(43)(N); 8 U.S.C. § 1324(a). Because the time limitation in INA § 101(a)(43) only
applies to convictions for violations of foreign law, there was no need to include express
language disregarding INA § 101(a)(43)’s age limitation on foreign convictions in § 2L1.2’s
application note defining “alien smuggling offense.”
Similarly, Application Note 4(B), like the application note defining “sentence imposed,”
imports the definition of a term from the guidelines’ criminal history section. Application Note
4(B) of § 2L1.2 states that “‘[t]hree or more convictions’ means at least three convictions for
offenses that are not considered ‘related cases’, as that term is defined in Application Note 3 of §
4A1.2.” Application Note 3 of § 4A1.2 directs that offenses are not related if they are “separated
by an intervening arrest.” Because the determination of whether cases are related has nothing to
do with whether there is a time restriction on particular convictions and the definition imported
from the criminal history section into § 2L1.2 is limited to determining whether offenses are
related cases, including an explicit reference dismissing the criminal history section’s time bar
for certain convictions would have served no purpose.
13
application note stating that a particular conviction was to be applied without
regard to the date of conviction. See Stultz, 356 F.3d at 269 (finding that “the
clause referring to dates of conviction was unnecessary with respect to drug
trafficking crimes, and such omission is not an invitation to consider the period of
time between offenses as grounds for departure”).
The language in Application Notes 1(B)(vii) and 3(A) stating that the terms
are applied without regard to the date of conviction was included not to
distinguish them from the rest of § 2L1.2, but to distinguish them from the
statutory context from where the terms came. The “without regard to the date of
conviction” language in those two application notes was included to keep those
two terms in accord with the rest of § 2L1.2; it was done to make clear that §
2L1.2 contains no restriction on the time period from which convictions are
applied.
B.
Camacho also argues that the rule of lenity should be applied to reduce the
sixteen-level enhancement he received under § 2L1.2(b)(1)(A)(ii) to an eight-level
enhancement under § 2L1.2(b)(1)(C). We will apply the rule of lenity only if the
provision being construed is still ambiguous after application of normal rules of
construction. See United States v. Jeter, 329 F.3d 1229, 1230 (11th Cir. 2003);
14
see also Holloway v. United States, 526 U.S. 1, 12 n.14, 119 S. Ct. 966, 972 n.14
(1999) (“We have repeatedly stated that the rule of lenity applies only if, after
seizing everything from which aid can be derived, we can make no more than a
guess as to what Congress intended.” (internal quotation and marks omitted)).
Based on § 2L1.2’s language, a comparison of the provisions at issue with the rest
of § 2L1.2 and with the rest of the Guidelines, and the purpose of the provisions in
§ 2L1.2 that have express time limitations, it is clear that § 2L1.2 contains no
general time restriction for applicable convictions. Therefore, we have no
occasion to apply the rule of lenity. See United States v. Saunders, 318 F.3d 1257,
1264 (11th Cir. 2003) (noting that “the interpretation of the sentencing guidelines
is governed by traditional rules of statutory interpretation”).
III.
Camacho next contends that his sentence is unconstitutional in light of the
Supreme Court’s decisions in Blakely v. Washington, 542 U.S. __, 124 S. Ct.
2531 (2004) and United States v. Booker, 543 U.S. ___, 125 S. Ct. 738 (2005).
Camacho argues that his guilty plea encompassed only conduct that was sufficient
for the district court to apply the eight-point enhancement for a previous
“aggravated felony” pursuant to U.S.S.G. § 2L1.2(b)(1)(C). He asserts that by
applying the sixteen-point enhancement under § 2L1.2(b)(1)(A)(ii), the district
15
court violated his Sixth Amendment rights by applying facts that were neither
found by a jury beyond a reasonable doubt nor admitted by him in his plea.
Because Camacho failed to raise this issue before the district court, we
review only under a plain error standard. United States v. Rodriguez, 398 F.3d
1291, 1298 (11th Cir. 2005). “An appellate court may not correct an error the
defendant failed to raise in the district court unless there is: (1) error, (2) that is
plain, and (3) that affects substantial rights. 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.” Id. (internal citation and quotations omitted).
Camacho’s sixteen-level enhancement was based solely on the fact that he
had previous convictions. In Almendarez-Torres v. United States, 523 U.S. 224,
118 S. Ct. 1219 (1998), the Supreme Court held that the government need not
allege in its indictment and need not prove beyond a reasonable doubt that a
defendant had prior convictions for a district court to use those convictions for
purposes of enhancing a sentence. Id.; see also United States v. Marseille, 377
F.3d 1249, 1257 (11th Cir. 2004). “This conclusion was left undisturbed by
Apprendi, Blakely, and Booker.” United States v. Shelton, 400 F.3d 1325, 1329
16
(11th Cir. 2005).3 Therefore, the district court did not violate Camacho’s Sixth
Amendment rights by applying the § 2L1.2(b)(1)(A)(ii) enhancement based on his
previous convictions.
IV.
Although the district court did not commit a Sixth Amendment violation in
sentencing Camacho, it did commit a statutory error under Booker. As we stated
in Shelton, the district court commits a statutory error by sentencing a defendant
“under a mandatory Guidelines scheme, even in the absence of a Sixth
Amendment enhancement violation.” 400 F.3d at 1330–31. By sentencing
Camacho under a mandatory guidelines scheme, the district court committed a
Booker statutory error. See id.
As we stated before, because Camacho did not raise this argument before
the district court, our review is only for plain error. Rodriguez, 398 F.3d at 1298.
Because the district court treated the guidelines as mandatory, it committed an
error that is plain. Shelton, 400 F.3d at 1330–31. Despite meeting the first two
3
Although recent decisions, including Shepard v. United States, 544 U.S. ___, ___ S. Ct.
___ (2005), may arguably cast doubt on the future prospects of Almendarez-Torres’s holding
regarding prior convictions, the Supreme Court has not explicitly overruled Almendarez-Torres.
As a result, we must follow Almendarez-Torres. See Hohn v. United States, 524 U.S. 236,
252–53, 118 S. Ct. 1969, 1978 (1998) (“Our decisions remain binding precedent until we see fit
to reconsider them, regardless of whether subsequent cases have raised doubts about their
continuing vitality.”).
17
prongs of the plain error test, Camacho has failed to fulfill his burden on the third
prong.
Meeting the third prong of the plain error test “requires that an error have
affected substantial rights, which almost always requires that the error must have
affected the outcome of the district court proceedings.” Rodriguez, 398 F.3d at
1299 (quotations and marks omitted). To determine whether an error has affected
a defendant’s substantial rights, “we ask whether there is a reasonable probability
of a different result if the guidelines had been applied in an advisory instead of
binding fashion by the sentencing judge in this case.” Id. at 1301.
Camacho’s only argument in this regard is the blanket contention that the
district court imposed the guideline sentence it did “solely” because of the
mandatory nature of the guidelines. As we said in Shelton, “[t]o establish the third
prong takes something more than showing the district court sentenced within the
Guidelines range and felt bound to do so, especially given that the Guidelines
range remains an important factor in sentencing.” 400 F.3d at 133. Furthermore,
a review of the sentencing transcript in this case indicates that, if anything, the
district court was contemplating imposing a longer sentence rather than a shorter
one.
18
As a result, Camacho has failed to carry his burden of demonstrating “a
reasonable probability of a different result if the guidelines had been applied in an
advisory instead of binding fashion by the sentencing judge in this case.”
Rodriguez, 398 F.3d at 1301.
V.
Because U.S.S.G. § 2L1.2(b)(1) covers convictions without regard to their
date, the district court committed no error in finding that Camacho’s previous
convictions warranted the application of § 2L1.2(b)(1)(A)(ii)’s sixteen-level
enhancement for “crimes of violence.” Furthermore, the district court did not
violate Camacho’s Sixth Amendment rights under Booker by imposing a sixteen-
level enhancement pursuant to § 2L1.2(b)(1)(A)(ii) based on his prior convictions.
Finally, Camacho did not carry his burden of demonstrating that the district
court’s Booker statutory error affected his substantial rights.
AFFIRMED.
19