F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
NOV 24 2000
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 00-1134
RUBEN MARTINEZ-VILLALVA,
a/k/a Ruben Martinez-Villalba, a/k/a
Alfredo Martinez-Rodriguez, a/k/a
Oscar Martinez-Villalba,
Defendant-Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
(D.C. No. 99-CR-296-B)
Submitted on the briefs:
Michael G. Katz, Federal Public Defender, Warren R. Williamson, Assistant
Federal Public Defender, Denver, Colorado, for Defendant-Appellant.
Thomas L. Strickland, United States Attorney, Gregory Goldberg, Assistant
United States Attorney, Denver, Colorado, for Plaintiff-Appellee.
Before TACHA , McKAY , and PORFILIO , Circuit Judges.
TACHA , Circuit Judge.
Defendant pleaded guilty to and was convicted of one count of illegal
reentry following deportation, in violation of 8 U.S.C. § 1326(a). The district
court sentenced him to seventy-seven months’ imprisonment, followed by
three years of supervised release. That sentence was in accord with the
recommendation in the Presentence Investigation Report (PIR) and included
a sixteen-level enhancement because defendant had a prior aggravated felony
conviction. See United States Sentencing Commission, Guidelines Manual,
§ 2L1.2(b)(1)(A). Defendant objected to the PIR, arguing that he was not subject
to the sixteen-level enhancement because his prior felony conviction was not an
“aggravated felony” as defined at 8 U.S.C. § 1101(a)(43)(G). The district court
disagreed.
On appeal, defendant makes the same argument. 1 He maintains that his
conviction in Kansas state court was not an “aggravated felony,” as that term is
defined by federal law. Thus, he argues that the district court’s sixteen-level
enhancement to his base offense level was improper. His position is that the
proper enhancement would have been a four-level increase applicable where
a defendant was convicted of a felony other than an aggravated felony. See USSG
1
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.
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§ 2L1.2(b)(1)(B). In addition to the sentencing guideline argument, defendant
filed a supplemental brief raising the question of the applicability of a recently
decided Supreme Court case, Apprendi v. New Jersey, 120 S. Ct. 2348 (2000). 2
We address that supplemental issue first.
I. Applicability of Apprendi
In Apprendi, the Supreme Court held that “[o]ther than the fact of a prior
conviction, any fact that increases the penalty for a crime beyond the prescribed
statutory maximum must be submitted to a jury, and proved beyond a reasonable
doubt.” Id. at 2362-63. As defendant correctly concedes, the Apprendi Court
made it clear that its holding is subject to a narrow exception and is not
applicable when the sentence-enhancing fact is a prior conviction, as in this case.
The exception was carved out of the Apprendi holding to account for the Court’s
holding in Almendarez-Torres v. United States, 523 U.S. 224 (1998). The
Apprendi Court specifically declined to revisit or overrule Almendarez-Torres.
Apprendi, 120 S. Ct. at 2362 (“Even though it is arguable that Almendarez-Torres
was incorrectly decided, and that a logical application of our reasoning today
should apply if the recidivist issue were contested, Apprendi does not contest the
2
Defendant states that he raised this issue in a supplemental brief in this
appeal in order to preserve it for further review by the Supreme Court, in light of
the Court’s recent decision in Apprendi. Appellant’s Supp. Br. at 1, 2, 6.
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decision’s validity and we need not revisit it for purposes of our decision today to
treat the case as a narrow exception to the general rule we recalled at the
outset.”). This case falls squarely within the exception to the Apprendi holding
and is governed by Almendarez-Torres.
Almendarez-Torres held that 8 U.S.C. § 1326(b)(2), which mandates an
increased sentence for violation of § 1326(a) if the previous deportation was after
commission of an aggravated felony, was not a separate element of the offense
that must be proved to a jury beyond a reasonable doubt, but was, instead, merely
a sentencing factor based on recidivism. Almendarez-Torres, 523 U.S. at 235.
We are bound by that case to hold that the fact of defendant’s prior felony
conviction is not an element of the offense with which he was charged by
indictment, but is, instead, a sentencing factor. See id. Consequently, the
indictment in this case, which did not separately charge defendant with a prior
aggravated felony conviction, did not violate defendant’s constitutional rights.
See id.
II. Prior Felony Conviction
Before we reach the merits of defendant’s sentencing guidelines argument,
we must determine our standard of review. Defendant submits that review of
whether a prior conviction was for an “aggravated felony” is de novo. The
government, though acknowledging that we review application of the sentencing
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guidelines de novo, argues that the narrow question of what sentence the Kansas
state court imposed is a factual one that should be reviewed for clear error.
“We review the district court’s interpretation and application of the
Sentencing Guidelines de novo.” United States v. Chavez-Valenzuela, 170 F.3d
1038, 1039 (10th Cir. 1999). Stated differently, how the guidelines apply to
defendant’s conviction for illegal reentry is a question of law that we review
de novo. See United States v. Ramos-Garcia, 95 F.3d 369, 371 (5th Cir. 1996).
Defendant’s argument is that the district court erred in enhancing his sentence by
sixteen levels under the guidelines on account of a prior aggravated felony
conviction. This challenge is to the district court’s application and interpretation
of the guidelines, and, consequently, we review the district court’s action
de novo. See United States v. Lugo, 170 F.3d 996, 1006 (10th Cir. 1999)
(reviewing de novo whether prior conviction was felony or misdemeanor under
state law, in deciding whether defendant’s prior conviction was an aggravated
felony, and characterizing question as an interpretation of sentencing guidelines). 3
3
The government cites an unpublished order and judgment from this court as
authority for its position that the standard of review on this question is clear error.
As stated in 10th Cir. R. 36.3(A), an order and judgment is not binding precedent.
Further, 10th Cir. R. 36.3(B) states that citation to unpublished decisions is
disfavored. However, subsection (1) of that rule provides for citation of an
unpublished decision, but only if “it has persuasive value with respect to a
material issue that has not been addressed in a published opinion.” This court’s
published decision in Lugo applied a de novo standard of review to precisely the
(continued...)
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The guidelines provide for a sixteen-level enhancement to the base offense
level when the defendant was previously deported after conviction of an
aggravated felony. USSG § 2L1.2(b)(1). The application notes following
§ 2L1.2(b)(1) state that “aggravated felony” is defined at 8 U.S.C. § 1101(a)(43).
USSG § 2L1.2(b)(1), comment. (n.1). Turning to the relevant portion of that
statute, an “aggravated felony” includes “a theft offense . . . for which the term of
imprisonment is at least one year.” 8 U.S.C. § 1101(a)(43)(G). Further,
subsection 48 of the statute states that “[a]ny reference to a term of imprisonment
or a sentence with respect to an offense is deemed to include the period of
incarceration or confinement ordered by a court of law regardless of any
suspension of the imposition or execution of that imprisonment or sentence in
whole or in part.” Id. § 1101(a)(48)(B).
Our analysis of this issue is guided by the underlying principle that it is the
government’s burden to prove the facts supporting a sentence enhancement by
a preponderance of the evidence. See United States v. Rice, 52 F.3d 843, 848
(10th Cir. 1995). The only evidence before the district court regarding
defendant’s theft conviction in state court was a state court Journal Entry.
3
(...continued)
same issue (whether a prior conviction was a felony or misdemeanor under state
law) that the unpublished case reviewed for clear error. Consequently, the
government’s citation to the unpublished decision, in light of this court’s
published authority, was contrary to 10th Cir. R. 36.3(B)(1).
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The Journal Entry, which is written in the third-person as a narrative, states
in relevant part:
IT IS, THEREFORE, BY THE COURT ORDERED,
ADJUDGED AND DECREED, that the defendant shall be sentenced
pursuant to K.S.A. 21-3701, 21-4501, 21-4601, 21-4603, 21-4606,
21-4608, 21-4609 and 21-4614, to a term of confinament [sic] in the
custody of the Secretary of Corrections of the State of Kansas for a
term of not less than one (1) year nor more than two (2) years. The
Court further orders that the defendant shall be given credit for time
served.
Thereupon, Mr. Levy makes an oral application for probation
on behalf of the defendant. After hearing the same and receiving
arguments the Court grants probation upon conditions stated upon the
Record.
IT IS, THEREFORE, FURTHER ORDERED, ADJUDGED
AND DECREED that the defendant, Oscar MARTINEZ, shall be
placed upon unsupervised probation for a term of two (2) years and
that this probation is granted because this is the defendant’s first
offense and also because said offense is a class E felony involving no
violence or loss of property, the same having been returned.
R., Addendum to PIR, Attach. A at 1-2.
Based on this evidence, the district court held that the government had
shown by a preponderance of the evidence that plaintiff had a prior felony
conviction for which the term of imprisonment was at least one year. In reaching
that conclusion, the district court held as a matter of law that the legal effect of
the Kansas state court’s Journal Entry was a suspended sentence of one to two
years’ confinement and two years of probation. Both parties agree that, if the
Kansas court imposed a suspended sentence of at least one year’s imprisonment
followed by probation, the conviction would constitute an aggravated felony
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under federal law. See 8 U.S.C. § 1101(a)(48)(B); Chavez-Valenzuela, 170 F.3d
at 1039; Appellant’s Br. at 8; Appellee’s Br. at 9. On the other hand, the parties
agree that if the legal effect of the state court’s sentence was an original sentence
of probation, the conviction would not be an aggravated felony under federal law.
See United States v. Guzman-Bera, 216 F.3d 1019, 1020 (11th Cir. 2000); United
States v. Banda-Zamora, 178 F.3d 728, 730 (5th Cir. 1999); Appellant’s Br. at 8;
Appellee’s Br. at 9-10.
After de novo review, we cannot say that the state court Journal Entry
establishes by a preponderance that defendant’s prior conviction was for an
aggravated felony, as defined by the statute. The government asks us to interpret
the Journal Entry as having the legal effect of a one-year to two-year suspended
sentence of imprisonment. However, the Journal Entry itself does not state that
the court suspended the sentence of imprisonment, and the government has
submitted no other evidence that the court imposed a suspended sentence of
imprisonment.
To the contrary, reading the Journal Entry in light of Kansas law indicates
that the court imposed a statutory presumptive sentence of probation. The Journal
Entry reflects that the court imposed a one-year to two-year sentence of
imprisonment, pursuant to several state statutes, which are listed in the Journal
Entry. After the sentence of imprisonment was imposed, defense counsel
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requested that the defendant be sentenced, instead, to probation. Arguments were
heard on the motion, and the court then imposed a sentence of two years’
probation. In doing so, the court parroted the language in another state statute
(not among those the court previously identified as the basis for the one-year to
two-years’ imprisonment), which states that the presumptive sentence for a person
in defendant’s position is probation. Given these circumstances, and absent
evidence that the state court sentence was actually a suspended sentence
of imprisonment, it appears that the legal effect of the state court action was an
original sentence of probation.
We do not, however, even need to go that far. At the very least, we can say
that the government did not establish by a preponderance of the evidence that the
legal effect of the state court’s action was a suspended term of imprisonment.
From the Journal Entry alone, “it is not possible to discern with the required
certainty whether the state court intended to assess a term of imprisonment and
suspend imposition thereof, or to place [defendant] directly on probation.”
United States v. Herrera-Solorzano, 114 F.3d 48, 50 (5th Cir. 1997).
Consequently, we hold that the government did not establish by a preponderance
of the evidence that defendant was sentenced to a term of imprisonment of at least
one year. Thus, the government failed to carry its burden of establishing
a conviction for an aggravated felony for purposes of enhancing defendant’s
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sentence pursuant to USSG § 2L1.2(b)(1)(A). We REMAND this case to the
district court for re-sentencing.
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United States v. Martinez-Villalva
Court: Court of Appeals for the Tenth Circuit
Date filed: 2000-11-24
Citations: 232 F.3d 1329
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