United States v. Carrasco-Mateo

United States Court of Appeals
For the First Circuit

No. 03-1553

UNITED STATES OF AMERICA,

Appellee,

v.

MANUEL CARRASCO-MATEO,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Jay A. García-Gregory, U.S. District Judge]

Before

Selya, Circuit Judge,

Coffin and Cyr, Senior Circuit Judges.

Alexander Zeno on brief for appellant.
H.S. Garcia, United States Attorney, Sonia I. Torres-Pabón and
Nelson Pérez-Sosa, Assistant United States Attorneys, on brief for
appellee.

November 23, 2004
 SELYA, Circuit Judge. In this appeal, defendant-

appellant Manuel Carrasco-Mateo challenges a sentence imposed by

the district court in consequence of his guilty plea to a charge of

illegal reentry into the United States following an earlier

deportation. See 8 U.S.C. § 1326(a). The appellant asseverates

that the sentencing court erred in (i) boosting his base offense

level by sixteen on account of a prior felony conviction; (ii)

adding three points to his criminal history score on account of the

same conviction; and (iii) increasing his criminal history score by

two more points because he illegally reentered the country while on

parole. These asseverations require us to deal with questions of

first impression in this circuit as to the meaning and operation of

certain provisions of the federal sentencing guidelines. Despite

the ingenious nature of the appellant's challenges, we discern no

error. Consequently, we affirm the sentence.

I.

Background

Because this appeal follows a guilty plea, we derive the

facts from the change-of-plea colloquy, the uncontested portions of

the presentence investigation report (PSI Report), and the

transcript of the disposition hearing. United States v. Brewster,

127 F.3d 22, 24 (1st Cir. 1997); United States v. Dietz, 950 F.2d

50, 51 (1st Cir. 1991).

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 The origins of this appeal can be traced to the

appellant's felony drug conviction in a New York state court, for

which he received an indeterminate prison sentence of one to three

years on March 15, 2000. The appellant, a Dominican national,

served less than a year of that sentence before being paroled into

the custody of the Immigration and Naturalization Service (INS) to

await deportation. See 8 U.S.C. § 1227(a)(2)(B)(i). The INS

deported him to the Dominican Republic on April 25, 2001,

notwithstanding that his parole term was to last until January 25,

2003.

We fast-forward to July 18, 2002. On that date, a Coast

Guard search of a merchant vessel docked in San Juan uncovered

twelve stowaways (including the appellant). After records revealed

the previous deportation order, a federal grand jury indicted the

appellant on a charge of violating 8 U.S.C. § 1326(a), a statute

that makes it unlawful for a previously deported alien to reenter

the United States without the express permission of the Attorney

General.

The appellant eventually pleaded guilty to the charge.

The offense of conviction carried a base offense level of eight.

See USSG §2L1.2(a).1 The PSI Report recommended a sixteen-level

1
A sentencing court must use the guidelines in effect at the
time of sentencing unless doing so would present ex post facto
problems. United States v. Harotunian, 920 F.2d 1040, 1041-42 (1st
Cir. 1990). The court here utilized the November 2002 edition of
the guidelines, without objection from either side. We therefore

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enhancement because the appellant had previously been deported

following a drug-trafficking conviction for which the sentence

imposed exceeded thirteen months. See 8 U.S.C. § 1326(b)(2); USSG

§2L1.2(b)(1)(A)(i). This brought the appellant's adjusted offense

level to 24. After a two-level discount for acceptance of

responsibility, USSG §3E1.1(a), the PSI Report settled upon a total

offense level of 22.

Moving to the other furculum of the sentencing grid, the

PSI Report recommended the assignment of three criminal history

points on account of the appellant's prior conviction, id.

§4A1.1(a), and two additional points for illegal reentry while on

parole, id. §4A1.1(d). These recommendations produced a criminal

history category (CHC) of III. Consequently, the PSI Report

suggested that the district court employ a guideline sentencing

range (GSR) of 51-63 months. See id. Ch.5, Pt.A (sentencing

table).

The district court convened the disposition hearing on

March 21, 2003. The appellant argued that he was entitled to a

three-level reduction for acceptance of responsibility, see id.

§3E1.1(b), instead of the two-level reduction recommended in the

PSI Report. The appellant also sought a downward departure, see

id. §5K2.0, based on a claim that he had committed the offense of

conviction out of impoverished desperation.

emulate the district court's example.

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 The sentencing court agreed with the appellant that he

had timely accepted responsibility (and that, therefore, a three-

level reduction was in order). This reduction in the offense level

yielded a GSR of 46-57 months, based on a total offense level of 21

and a CHC of III. See id. Ch.5, Pt.A (sentencing table). The

court refused to depart downward and sentenced the appellant to a

forty-six month incarcerative term. This appeal ensued.

II.

Discussion

We review a district court's interpretation of the

sentencing guidelines de novo and its factual findings for clear

error. United States v. Mateo, 271 F.3d 11, 13 (1st Cir. 2001);

United States v. St. Cyr, 977 F.2d 698, 701 (1st Cir. 1992). Here,

however, the appellant advances on appeal an asseverational array

composed wholly of objections that he neglected to raise before the

district court. Because of this procedural default, our review is

restricted to plain error. United States v. Vazquez-Molina, ___

F.3d ___, ___ (1st Cir. 2004) [No. 03-2655, slip op. at 7]; United

States v. Rodriguez, 311 F.3d 435, 437 (1st Cir. 2002). That

raises the bar appreciably. To achieve a finding of plain error,

a defendant must show "(1) that an error occurred (2) which was

clear or obvious and which not only (3) affected the defendant's

substantial rights, but also (4) seriously impaired the fairness,

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integrity, or public reputation of judicial proceedings." United

States v. Duarte, 246 F.3d 56, 60 (1st Cir. 2001).

Against this backdrop, we turn to the appellant's three

assignments of error.

A.

Offense Level Enhancement

The sentencing guidelines set a base offense level of 8

for the crime of unlawfully entering or remaining in the United

States. USSG §2L1.2(a). The trial court is, however, directed to

impose a sixteen-level enhancement "[i]f the defendant previously

was deported . . . after a conviction for a felony that is a drug

trafficking offense for which the sentence imposed exceeded 13

months." Id. §2L1.2(b)(1)(A)(i). A felony drug-trafficking

conviction carrying a lesser sentence triggers only a twelve-level

enhancement. Id. §2L1.2(b)(1)(B).

In the case at hand, there is no dispute that the

appellant's prior New York conviction was a drug-trafficking felony

within the meaning of the applicable guidelines. The appellant

argues, however, that the district court erred in treating it as a

predicate for a sixteen-level enhancement. His first, and most

loudly bruited, claim is that because the appellant served less

than thirteen months on the prior conviction, he should have

received only a twelve-level enhancement.

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 This claim relies heavily on Application Note 1 of the

interpretive commentary to the sentencing guidelines. That note

provides 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." USSG §2L1.2, cmt. n.1(A)(iv). The appellant

reasons that when New York paroled him into the custody of the INS

less than one year into his incarcerative term, it simultaneously

delivered him into this comment's welcoming embrace. He thus reads

the phrase "sentence imposed" as referring only to the time

actually spent in immurement. This reading does not withstand

scrutiny.

Our quarrel is not with the text of Application Note 1.

The Sentencing Commission's commentary, including the application

notes, is binding on the courts as long as it does not conflict

either with the sentencing guidelines themselves or with some

statutory provision. See Stinson v. United States, 508 U.S. 36,

42-43 (1993); United States v. Piper, 35 F.3d 611, 617 (1st Cir.

1994); see also USSG §1B1.7. The commentary to the sentencing

guidelines must, however, be read in a straightforward, commonsense

manner. The appellant's reading of Application Note 1 does not

pass this screen. It distorts the plain meaning of the phrase

"sentence imposed" and, in the bargain, runs counter to a growing

consensus of case law. We explain briefly.

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 The phrase "sentence imposed" traditionally has meant

exactly what the words imply: the punishment meted out by the

sentencing court. An offender's early release cannot change the

contours of the original sentence imposed after the fact. See

Rodrigues v. INS, 994 F.2d 32, 34 (1st Cir. 1993) (collecting

cases).

Application Note 1 is perfectly consistent with this

reasoning. The enumerated caveats contained in the note —

probation, suspension, deferral, and stay — are all judicial

options available at the moment of sentencing. See generally 18

U.S.C. § 3553. Parole is a different animal entirely, heavily

influenced by post-sentencing events and administered by the

executive rather than the judicial branch. See United States v.

Frias, 338 F.3d 206, 212 (3d Cir. 2003). Judges are not free to

rewrite the sentencing guidelines and, in all events, the inclusion

of parole by judicial fiat among the sentencing alternatives

delineated in Application Note 1 would be anomalous. In our view,

the absence of any mention of parole in the text of the note is a

strong indication that the Sentencing Commission intended section

2L1.2's enhancements to reflect the original sentence pronounced,

not the time actually served. See United States v. Mendez-Villa,

346 F.3d 568, 570 (5th Cir. 2003) (noting that the plain language

of Application Note 1 does not include parole); United States v.

Rodriguez-Arreola, 313 F.3d 1064, 1066 (8th Cir. 2002) (holding

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that "in this guideline, as in federal criminal law generally, the

term 'sentence imposed' means the sentence reflected in the

criminal judgment"); cf. 229 Main St. Ltd. P'ship v. Mass. Dep't of

Envtl. Prot., 262 F.3d 1, 5-6 (1st Cir. 2001) (presuming that

Congress acts deliberately when it excludes from one provision a

statutory term it includes elsewhere in the same act).

We add, moreover, that this reading of the phrase

"sentence imposed" reinforces an easily discernible goal of the

sentencing guidelines: to punish more severely those offenders who

previously have received lengthy sentences. The appellant's

reading would instead reserve the most severe punishment for those

who — because of poor behavior, ill fortune, or the inconsistent

operation of parole in the several states — happen to serve more

time. There is no reason to believe that the Sentencing Commission

had that result in mind. See Rodriguez-Arreola, 313 F.3d at 1066.

To cinch matters, the Commission made its intentions

plain elsewhere in the guidelines. Although courts should proceed

cautiously in drawing comparisons between guideline chapters, see

USSG §1B1.1, cmt. n.2, Chapter Four is particularly instructive as

to the interpretive question at issue here. Like section 2L1.2(b),

Chapter Four reflects the principle that recidivist offenders

should receive sterner punishment. We therefore agree with the

Third Circuit, Frias, 338 F.3d at 210, that it is appropriate to

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consult Chapter Four in interpreting the phrase "sentence imposed"

as the phrase is used in section 2L1.2(b).

Chapter Four states in pertinent part that, in the

context of adjustments to a defendant's criminal history score, a

prior "sentence of imprisonment" means "the sentence pronounced,

not the length of time actually served." USSG §4A1.2, cmt. n.2.

Given the similarity of purpose between section 4A1.1 and section

2L1.2(b), we think that it is logical to impute the same meaning to

"sentence imposed." See Frias, 338 F.3d at 210; see also United

States v. Benitez-Perez, 367 F.3d 1200, 1204-05 (9th Cir. 2004)

(holding that a defendant's parole status did not affect the extent

of a section 2L1.2 enhancement).

If more were needed — and we do not think that it is —

the Sentencing Commission recently amended section 2L1.2 to affirm

this precise congruity. See USSG §2L1.2, cmt. n.1(B)(vii) (2003)

(explaining that the term "sentence imposed" has the same meaning

when used in section 2L1.2 as the term "sentence of imprisonment"

when used in section 4A1.2). Even though this amendment post-dates

the appellant's offense and conviction, it is relevant here because

the Commission characterized this amendment as clarifying rather

than substantive. USSG Manual app. C, amend. 658 (2003).

Clarifying amendments are considered "purely expository" and, thus,

"may be applied retroactively." United States v. Cabrera-Polo, 376

F.3d 29, 32 (1st Cir. 2004). Consequently, this amendment

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reinforces our view that the district court properly disregarded

the appellant's release on parole in calculating the extent of the

enhancement required under section 2L1.2.

Although the appellant does not make it squarely, his

argument contains the seeds of a possible second ground for

challenging the offense level enhancement. The New York sentence

was indeterminate — one to three years — and one might posit that

the sentence imposed does not unequivocally exceed the thirteen-

month minimum described in section 2L1.2(b)(1)(A)(i). If this were

so, the sentence could not support a sixteen-level enhancement. In

the last analysis, however, this argument is not convincing.

Chapter Four of the Guidelines Manual once again serves

as a useful point of reference. It counsels that "the length of a

sentence of imprisonment is the stated maximum." USSG §4A1.2, cmt.

n.2. The same note then offers the following example: "in the

case of an indeterminate sentence of one to five years, the stated

maximum is five years." Id. That is precisely the situation here.

The case law tracks this approach. Where indeterminate

sentences are involved, the term "sentence imposed" uniformly has

been held, for purposes of section 2L1.2, to mean the high end of

the indeterminate range. See, e.g., Frias, 338 F.3d at 212;

Rodriguez-Arreola, 313 F.3d at 1067. We endorse this view and hold

that, for guideline purposes, a district court should treat a prior

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indeterminate sentence as the functional equivalent of a time-

certain sentence imposed for the top end of the stated range.

That ends this aspect of the matter.2 We conclude,

without serious question, that the court below did not err in

applying a sixteen-level enhancement pursuant to section

2L1.2(b)(1)(A)(i).

B.

Criminal History Calculation

We turn now to the calculation of the appellant's

criminal history score. The nature of the appellant's second and

third arguments allows us to address them under one heading.

The appellant's second plaint is essentially an echo of

the first. He contends that the district court erroneously applied

USSG §4A1.1(a), which requires the addition of three criminal

history points for "each prior sentence of imprisonment exceeding

one year and one month." The appellant reiterates that his actual

period of incarceration on the New York drug-trafficking conviction

fell short of this mark and maintains that his criminal history

category should be recalculated accordingly. As explained above,

the Sentencing Commission's commentary explicitly rejects this

2
The district court had all the information it needed to apply
section 2L1.2(b)(1) because the PSI Report accurately recorded the
details of the appellant's prior criminal history. We therefore
regard as misdirected the appellant's admonition that the district
court may not base its sentencing decision on information not
properly before it.

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proposed interpretation of section 4A1.1. See USSG §4A1.2, cmt.

n.2; see also United States v. Lewis, 40 F.3d 1325, 1344 (1st Cir.

1994) (applying the derived principle). Anything more that could be

said on this point would be a redundancy.

This brings us to the appellant's final assignment of

error, in which he challenges the awarding of two additional

criminal history points. The guidelines call for such an increment

"if the defendant committed the instant offense while under any

criminal justice sentence, including . . . parole." USSG

§4A1.1(d). Applying this directive, the lower court awarded the

additional points because the appellant illegally reentered the

United States while his New York parole term was still in effect.

The appellant challenges this ruling.

For purposes of this guideline, a criminal justice

sentence is one "having a custodial or supervisory component,

although active supervision is not required for this item to

apply." Id. §4A1.1, cmt. n.4. Seizing on the first clause of this

statement, the appellant asserts that he was not on parole within

the meaning of section 4A1.1(d) when he illegally reentered the

country. This assertion rests upon two assumptions: first, that

New York law governs the meaning of the word "parole" in this

context; and second, that New York relinquished any custodial or

supervisory relationship with him when it paroled him into the

custody of the INS. Neither assumption holds water.

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 The definition of a term appearing in the sentencing

guidelines is a matter governed by federal law. See United States

v. Aymelek, 926 F.2d 64, 71 (1st Cir. 1991). With specific

reference to section 4A1.1(d), we have held that whether a

defendant is "under any criminal justice sentence" is a federal

question. Mateo, 271 F.3d at 15. These authorities are

controlling here.

In urging a contrary view, the appellant cites a cluster

of cases in which courts have delved into state law to resolve

questions arising in the section 4A1.1(d) context. Those cases are

readily distinguishable. Each of them involved a defendant

laboring under an idiosyncratic state scheme that conferred a

status not mentioned in section 4A1.1(d). See, e.g., United States

v. Kipp, 10 F.3d 1463, 1467 (9th Cir. 1993) (dealing with deferred

sentencing); United States v. Davis, 797 F. Supp. 672, 675 (N.D.

Ind. 1992) (dealing with unsupervised probation). These courts

turned to state law for guidance in determining whether such

schemes carried sufficient custodial or supervisory characteristics

to qualify as criminal justice sentences within the purview of

section 4A1.1(d). See Kipp, 10 F.3d at 1467; Davis, 797 F. Supp.

at 675-76. No similar inquiry is necessary in the instant case

because the status at issue here — parole — is explicitly listed in

section 4A1.1(d). See United States v. Camilo, 71 F.3d 984, 987

(1st Cir. 1995) (rejecting the proposition that "the Guidelines'

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otherwise unambiguous direction is necessarily qualified by an

additional showing under state law"); cf. Conn. Nat'l Bank v.

Germain, 503 U.S. 249, 254 (1992) ("When the words of a statute are

unambiguous . . . judicial inquiry is complete.") (citation and

internal quotation marks omitted). If courts were obliged to

tailor the plain meaning of terms used in the sentencing guidelines

to accommodate all the legal idiosyncrasies of the several states,

that obligation would doom the uniformity and consistency that the

sentencing guidelines were designed to foster. See Aymelek, 926

F.2d at 71. Thus, while state law is not always a sentencing

irrelevancy, the question here boils down to whether, under federal

law, the appellant was on parole when he committed the offense of

conviction. See id. at 71-72.

The district court unhesitatingly answered this query in

the affirmative, and we agree. The appellant suggests that his

term of parole ended when he was deported because New York, by

definition, could not exercise custodial or supervisory authority

over a parolee living abroad. The appellant cites no authority for

this proposition, and immigration law suggests that parole survives

deportation. For instance, Congress directed the Attorney General

that a deportation action should proceed apace notwithstanding an

alien's parole status "or possibility of arrest or further

imprisonment." 8 U.S.C. § 1231(a)(4)(A). Implicit in this

directive is the understanding that an alien may be deported and

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later face incarceration for violating his parole. See United

States v. Cuero-Flores, 276 F.3d 113, 118 (2d Cir. 2002). Such a

scenario is only possible if deportation leaves an existing term of

parole intact. Id. The same holds true for supervised release.

See, e.g., United States v. Williams, 369 F.3d 250, 253 (3d Cir.

2004) (explaining that "supervised release is not automatically

extinguished by deportation"); United States v. Ramirez-Sanchez,

338 F.3d 977, 980 (9th Cir. 2003) (same); United States v.

Akinyemi, 108 F.3d 777, 779 (7th Cir. 1997) (same); United States

v. Brown, 54 F.3d 234, 238-39 (5th Cir. 1995) (same).

We find these authorities persuasive here. Although the

appellant is correct that he may not have been subject to the

customary level of parole supervision after his deportation, the

Sentencing Commission has specified that "active supervision is not

required for this [guideline provision] to apply." USSG §4A1.1,

cmt. n.4. For purposes of section 4A1.1, a term of parole is a

term of parole, with or without active supervision. Ramirez-

Sanchez, 338 F.3d at 980. Accordingly, we hold that, under federal

law, deportation does not automatically extinguish an existing term

of parole.

We add, moreover, that New York law, insofar as it bears

on this discussion, lends no support to the appellant's position.

The appellant asserts that when New York paroles an inmate into the

custody of the INS, it has washed its hands of the inmate and

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effectively relinquished its custodial and supervisory authority.

New York, however, unequivocally reserves to itself "legal custody"

of all parolees until the expiration of their parole terms. See

N.Y. Exec. Law § 259-i(2)(b) (2004). Thus, if a deported alien

returns to New York at any time during the announced term of his

parole, the state is free to revoke his parole for cause shown and

reinstate the unexpired portion of the violator's incarcerative

sentence. People ex rel. Calderon v. Russi, 582 N.Y.S.2d 766, 767

(N.Y. App. Div. 1992) (characterizing the commencement of parole

violation proceedings against previously deported alien who

returned to the state as "a valid exercise of New York's police

power").

There is nothing odd about this configuration. It is

well-accepted that "legal custody" may be present when a person is

"subject to state-imposed restraints not shared by the public

generally." Gonzalez v. Justices of the Mun. Ct., 382 F.3d 1, 5

(1st Cir. 2004) (citation and internal quotation marks omitted).

The fact that a deported alien's parole status remains revocable

implicates powers of custody and supervision that lie at the

epicenter of section 4A1.1(d). See United States v. Lee, 941 F.2d

571, 572-73 (7th Cir. 1991) (considering whether releasing state

had jurisdiction to revoke defendant's probation in order to

determine the applicability of section 4A1.1(d)); Davis, 797 F.

Supp. at 675 (similar). As far as New York was concerned, the

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appellant was still serving his parole term when the INS arrested

him for illegal reentry.

III.

Conclusion

We need go no further. We hold that, with respect to

offense level calculations under USSG §2L1.2, the phrase "sentence

imposed" refers to the sentence pronounced, not the time actually

served; and in the case of an indeterminate sentence, that phrase

signifies the maximum term of incarceration under the sentence

pronounced. We also hold that deportation does not automatically

terminate an alien's existing parole term or status for purposes of

calculating his criminal history score. Consequently, we find no

error, plain or otherwise, in the district court's sentencing

determinations.

Affirmed.

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