United States v. Nava-Perez

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 99-51197
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UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

FELIPE NAVA-PEREZ, also known as
Mario Lugo-Rodriguez, also known
as Jimmy De La Fuente, also known
as Jimmy De La Fuentes, also known as
Mario Lugo, also known as Mario R. Lugo,
also known as Mario Hugo, also known
as Mario Rodriguez, also known as
Jimmy DeLaFuente, also known as Mario Lug,

Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
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February 12, 2001

Before WIENER, BARKSDALE, and EMILIO M. GARZA, Circuit Judges.

RHESA HAWKINS BARKSDALE, Circuit Judge:

The sole issue on appeal is whether Felipe Nava-Perez, an

alien, is subject to the imposed enhanced penalty, under 8 U.S.C.

§ 1326(b)(2), for removal “subsequent to a conviction for

commission of an aggravated felony”, based upon the following:

after having been deported (equivalent to being removed), he

reentered the United States illegally; was convicted for an

aggravated felony; was removed pursuant to the summary removal
procedure set forth in 8 U.S.C. § 1231(a)(5) (“prior order of

removal is reinstated from its original date”); reentered the

United States once again; and was convicted for illegal reentry, in

violation of 8 U.S.C. § 1326. We AFFIRM.

I.

Nava-Perez was deported from the United States in July 1997.

He reentered the United States illegally; in September 1998, he was

convicted for an aggravated felony in Texas (cocaine possession).

Following that conviction, his 1997 deportation order was

reinstated pursuant to 8 U.S.C. § 1231(a)(5); in May 1999, he was

deported — for the second time. Less than two months later, he was

again found in the United States.

As a result, Nava-Perez was indicted on one count of illegal

reentry, in violation of 8 U.S.C. § 1326. In addition, the

Government filed a notice of enhanced penalty, pursuant to 8 U.S.C.

§ 1326(b)(2) (increasing statutory maximum sentence to 20 years for

“any alien ... whose removal was subsequent to a conviction for

commission of an aggravated felony”). Nava-Perez pleaded guilty.

The Presentence Investigation Report assigned a base offense

level of 8. Because of Nava-Perez’s prior aggravated felony

conviction, his offense level was increased by 16 levels, pursuant

to U.S.S.G. § 2L1.2(b)(1)(A) (16-level increase for unlawfully

reentering United States after having been deported following

aggravated felony conviction). He received a three-level

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adjustment for acceptance of responsibility, resulting in a total

offense level of 21. With a criminal history category of VI, the

guideline sentencing range was 77 to 96 months. Nava-Perez’s

objection to the 16-level increase was overruled; he was sentenced

to 77 months imprisonment.

II.

Nava-Perez contests the enhancement. In a supplemental brief,

relying on Apprendi v. New Jersey, 530 U.S. 466 (2000), he also

maintains: the enhancement violated due process because the

indictment failed to allege a prior conviction; and, without that

conviction, his sentence exceeds the statutory maximum for illegal

reentry.

A.

The statutory maximum sentence for illegal reentry is two

years. 8 U.S.C. § 1326(a). But, as noted, the maximum is

increased to 20 years for “any alien ... whose removal was

subsequent to a conviction for commission of an aggravated felony”.

8 U.S.C. § 1326(b)(2) (emphasis added). The Sentencing Guidelines

implement that provision by specifying a 16-level increase in the

offense level for unlawful reentry into the United States after

having been deported following a criminal conviction for an

aggravated felony. U.S.S.G. § 2L1.2(b)(1)(A).

Nava-Perez maintains he is not subject to the enhancement,

claiming his second removal, in 1999, was effective in 1997, before

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his commission of the aggravated felony in 1998. As stated, Nava-

Perez’s second removal in May 1999, after his 1998 aggravated

felony conviction, was accomplished pursuant to 8 U.S.C. §

1231(a)(5):

If the Attorney General finds that an alien
has reentered the United States illegally
after having been removed or having departed
voluntarily, under an order of removal, the
prior order of removal is reinstated from its
original date and is not subject to being
reopened or reviewed, the alien is not
eligible and may not apply for any relief
under this chapter, and the alien shall be
removed under the prior order at any time
after the reentry.

8 U.S.C. § 1231(a)(5) (emphasis added).

The plain language of that section, according to Nava-Perez,

means that, by operation of law, 1997 was the effective date of his

second removal, even though it occurred in 1999, because the second

removal was based on the reinstated 1997 removal order. Therefore,

he claims, his removal in 1999 was not subsequent to his 1998

aggravated felony. Alternatively, Nava-Perez contends that, if we

determine the statute is ambiguous, the rule of lenity requires our

holding the enhancement inapplicable.

The district court’s interpretation of § 1231(a)(5), as well

as its application of the Sentencing Guidelines, are reviewed de

novo. E.g., United States v. Norris, 217 F.3d 262, 273 (5th Cir.

2000) (Sentencing Guidelines); United States v. Rasco, 123 F.3d

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222, 226 (5th Cir. 1997), cert. denied, 522 U.S. 1083 (1998)

(statutory interpretation).

Contrary to Nava-Perez’s interpretation of § 1231(a)(5), it

does not treat the alien’s removal as effective “from its original

date”. Instead, it provides: “the prior order of removal is

reinstated from its original date”. 8 U.S.C. 1231(a)(5) (emphasis

added). It authorizes removal under the prior order “at any time

after the reentry”. Id. (emphasis added). In short, the statute

plainly contemplates, after the reentry, a second removal, under

the reinstated prior order.

Nava-Perez confuses reinstatement of the “order of removal”

with his actual removal under that reinstated order. He was

removed twice: once in 1997, and again in 1999, after his 1998

aggravated felony conviction. Although both removals are based on

the same 1997 order, with the second being based on the order’s

reinstatement, they are, nevertheless, separate removals. Because

the 1999 removal was subsequent to 1998, when Nava-Perez committed

an aggravated felony, he was subject to the enhanced penalty

pursuant to the plain, unambiguous language of § 1326(b)(2) and

U.S.S.G. § 2L1.2(b)(1)(A).

B.

Nava-Perez contends that, under Apprendi, his sentence

violated due process because it exceeded the two-year maximum

punishment for the offense charged. He concedes this contention is

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foreclosed by Almendarez-Torres v. United States, 523 U.S. 224

(1998) (8 U.S.C. § 1326(b)(2) is penalty provision and does not

define separate crime; therefore, prior conviction supporting

sentence enhancement does not have to be charged in indictment),

but maintains Apprendi has cast Almendarez-Torres into serious

doubt.

As Nava-Perez recognizes, we cannot overrule Supreme Court

precedent. Instead, he raises the issue to preserve it for

possible review by the Supreme Court.

III.

For the foregoing reasons, the judgment is

AFFIRMED.

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