United States v. Garcia-Rico

UNITED STATES COURT OF APPEALS
for the Fifth Circuit

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No. 94-10761
Summary Calendar

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UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

JOSE GARCIA-RICO,

Defendant-Appellant.

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Appeal from the United States District Court
for the Northern District of Texas

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(February 10, 1995)

Before DUHÉ, WIENER, and STEWART, Circuit Judges.

PER CURIAM:

Jose Garcia-Rico was convicted of illegal reentry after

deportation under 8 U.S.C. § 1326(a), (b)(2) (1988). He appeals

the district court's sixteen level enhancement of his sentence

under U.S.S.G. § 2L1.2(b)(2).1 The court applied the § 2L1.2(b)(2)

enhancement because Garcia-Rico was previously deported after a

conviction for voluntary manslaughter. Garcia-Rico contends that

voluntary manslaughter, at the time he committed it, did not

1
U.S.S.G. § 2L1.2 is the Sentencing Guideline applicable to the
offense of unlawful reentry. § 2L1.2(b)(2) provides for a 16 level
enhancement when "the defendant previously was deported after a
conviction for an aggravated felony."
constitute an aggravated felony under the statute. We affirm.

BACKGROUND

Garcia-Rico was convicted of voluntary manslaughter on January

18, 1990, and thereafter deported. He reentered this country

illegally and was arrested in March 1994. He pled guilty to one

count of illegal reentry after deportation under 8 U.S.C. § 1326.2

The PSR recommended a sixteen level enhancement under §

2L1.2(b)(2). Garcia-Rico objected to the PSR's recommendation on

the grounds that voluntary manslaughter only became an aggravated

felony under 8 U.S.C. § 1326 on November 29, 1990.3 He committed

the voluntary manslaughter before that date. The district court

nonetheless adopted the PSR's recommendation.

DISCUSSION

Whether the Sentencing Guidelines apply to a prior conviction

is a question of law. United States v. Howard, 991 F.2d 195, 199

(5th Cir.), cert. denied, 114 S. Ct. 395 (1993). We review

questions of law de novo. Id.

Congress defines the term "aggravated felony" in 8 U.S.C. §

1101(a)(43). Congress amended the definition in 1990 to include

2
An alien who is deported and later found illegally in the United
States violates § 1326(a). If the alien is convicted of an
aggravated felony before deportation, then § 1326(b)(2), which
carries a maximum sentence of 15 years, also applies.
3
Garcia-Rico does not dispute that his act of voluntary
manslaughter would constitute an aggravated felony if committed
after that date.

2
"any crime of violence . . . for which the term of imprisonment

imposed (regardless of any suspension of such imprisonment) is at

least 5 years." Immigration Act of 1990, Pub. L. No. 101-649, §

501(a), 104 Stat. 4978, 5048 (1990). The amended definition "shall

apply to offenses committed on or after the date of enactment of

this Act." Id. § 501(b), 104 Stat. at 5048. Congress enacted the

Immigration Act on November 29, 1990. Because Garcia-Rico

committed voluntary manslaughter before that date, he contends that

the amended definition of aggravated felony does not apply either

to 8 U.S.C. § 1326(b)(2) or U.S.S.G. § 2L1.2(b)(2).4

In United States v. Saenz-Forero, 27 F.3d 1016 (5th Cir.

1994), we addressed whether 8 U.S.C. § 1326(b)(2) could apply to an

aggravated felony committed before 1988 without violating the Ex

Post Facto Clause.5 The defendant had been convicted of an

aggravated felony in 1985, deported in 1986, and convicted of

illegal reentry in 1992. Because the defendant violated § 1326 in

1992, we rejected his ex post facto argument. Id. at 1020-21; see

also United States v. Arzate-Nunez, 18 F.3d 730, 734 (9th Cir.

1994) (noting that the relevant offense is the current § 1326

violation, not the predicate crime).

The Ninth Circuit addressed the precise question raised in

this appeal in United States v. Ullyses-Salazar, 28 F.3d 932 (9th

4
The commentary to § 2L1.2 defines aggravated felony in
accordance with the amended definition. See U.S.S.G. § 2L1.2
commentary n.7, added by Amendment 375 (effective Nov. 1, 1991).
5
Congress added § 1326(b)(2) in 1988. Anti-Drug Abuse Act of
1988, Pub. L. No. 100-690, § 7345(a)(2), 102 Stat. 4181, 4471
(1988).

3
Cir. 1994), petition for cert. filed, __ U.S.L.W. ____ (Dec 15,

1994) (No. 94-____). The defendant had been convicted of armed

robbery in 1983, deported, and convicted of illegal reentry in

1992. He contended that armed robbery became an aggravated felony

only after Congress enacted the 1990 amendment to § 1101(a)(43).

The court disagreed and applied the definition of aggravated felony

that existed at the time the defendant was arrested for illegal

reentry. Id. at 938 (citing Arzate-Nunez, 18 F.3d at 735). Based

on Arzate-Nunez and a reading of the statute, the court determined

that the relevant offense was the defendant's violation of § 1326.

Id. at 738-39.

We agree with the Ninth Circuit's conclusion in Ullyses-

Salazar, and we consider it consistent with our decision in Saenz-

Forero. The amended definition of § 1101(a)(43) applies to

offenses committed on or after November 29, 1990. The relevant

offense is Garcia-Rico's illegal reentry into this country.

Because he violated § 1326 in 1994, we apply the amended definition

of aggravated felony to Garcia-Rico.6 His voluntary manslaughter

conviction constitutes an aggravated felony. Thus, the district

court properly applied the § 2L1.2(b)(2) enhancement.

CONCLUSION

For the foregoing reasons, Appellant's sentence is

AFFIRMED.

6
We apply the amended definition to both § 1326(b)(2) and §
2L1.2(b)(2).

4