UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 96-40499
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
REYMUNDO REYNA-ESPINOSA,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
July 11, 1997
Before HIGGINBOTHAM, WIENER, and DENNIS, Circuit Judges.
DENNIS, Circuit Judge.
The question before us is whether a conviction for unlawful
possession of a firearm by an alien under 18 U.S.C. § 922(g)(5)
constitutes an “aggravated felony” for purposes of increasing the
defendant’s offense level by 16 levels pursuant to U.S.S.G. §
2L1.2(b)(2). This issue is one of first impression for all
circuits.
We hold that a conviction under § 922(g)(5) is not an
aggravated felony under § 2L1.2(b)(2); accordingly, we reverse the
district court and remand for resentencing.
FACTS and PROCEDURAL HISTORY
Reyna-Espinosa was arrested in November 1994 while attempting
to transport a firearm into Mexico. Although handcuffed, the
appellant managed to grab a United States Customs Service shotgun
and then attempted to carjack a government vehicle. Reyna-Espinosa
pleaded guilty to being an illegal alien in unlawful possession of
a firearm, in violation of 18 U.S.C. § 922(g)(5). The appellant
was sentenced to a term of imprisonment of twelve months and one
day, to be followed by a three-year term of supervision. In
October 1995, the appellant was deported to Mexico.
In January 1996, Reyna-Espinosa was arrested by the Border
Patrol when found walking along U.S. Highway 83 in Rio Grand City.
The appellant was indicted for being found in the United States
unlawfully after arrest and deportation, in violation of 8 U.S.C.
§ 1326(a) and (b)(2)1. Reyna-Espinosa pleaded guilty pursuant to
1
Reentry of removed alien
(a) Subject to subsection (b), any alien who--
(1) has been denied admission, excluded, deported, or removed or has
departed the United States while an order of exclusion, deportation, or
removal is outstanding, and thereafter (2) enters, attempts to enter, or
is at any time found in, the United States . . . shall be fined under
title 18, United States Code, or imprisoned not more than 2 years or both.
(b) Notwithstanding subsection (a), in the case of any alien described in
such subsection--
(1) whose removal was subsequent to a conviction for commission of three
or more misdemeanors involving drugs, crimes against the person, or both,
or a felony (other than an aggravated felony), such alien shall be fined
under title 18, United States Code, imprisoned not more than 10 years, or
both;
(2) whose removal was subsequent to a conviction for commission of an
aggravated felony, such alien shall be fined under such title, imprisoned
not more than 20 years, or both[.]
8 U.S.C. § 1326 (Supp. 1997)(in pertinent part).
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a plea agreement which provided that the government would recommend
a two-level adjustment for acceptance of responsibility and a
sentence at the low end of the applicable guideline range.
The Presentence Investigation Report (“PSR”) recommended that
the appellant’s prior conviction for being an illegal alien in
possession of a firearm under 18 U.S.C. § 922(g)(5) be considered
an aggravated felony. Accordingly, the PSR increased Reyna-
Espinosa’s base offense level of 8 by 16 levels pursuant to
U.S.S.G. § 2L1.2(b)(2). The PSR also recommended a three-level
decrease for acceptance of responsibility. Based on a total
offense level of 21 and a criminal history category of III, the
applicable sentencing range was calculated at 46 to 57 months.
Reyna-Espinosa objected to the 16-level enhancement, arguing
that the prior firearm conviction was not an aggravated felony
under the Guidelines. Reyna-Espinosa argued that the upward
adjustment should be four levels, not 16; thus, his sentencing
range should be 10 to 16 months.
In an addendum to the PSR, the probation department responded
that Application note 7 of the Commentary to § 2L1.2 specifically
refers to 18 U.S.C. § 1101(a)(43), which expressly defines a
violation of § 922(g)(5) as an aggravated felony under the
Immigration and Nationality Act (“INA”).
The district court overruled Reyna-Espinosa’s objection,
adopting the PSR in full. The court sentenced the appellant to 46
months of imprisonment, to be followed by a three-year term of
supervised release.
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STANDARD OF REVIEW
We review a claim that the district court erred in applying
U.S.S.G. § 2L1.2(b)(2) instead of § 2L1.2(b)(1) de novo; we review
the trial court’s factual findings under a clearly erroneous
standard. United States v. Rodriguez-Guzman, 56 F.3d 18 (5th Cir.
1995).
DISCUSSION
Reyna-Espinosa appeals his sentence on the basis that his
conviction for being an alien in unlawful possession of a firearm
is not an aggravated felony for purposes of U.S.S.G. § 2L1.2. The
appellant claims that the district court erred in enhancing his
base offense level by 16 levels instead of four.
Section 2L1.2(a) of the Guidelines provides for a base offense
level of 8 for an alien who unlawfully enters or remains in the
United States following arrest and deportation, in violation of 8
U.S.C. §§ 1326(a) and 1326(b)(2). Subsection 2L1.2(b) provides for
an enhancement of the base offense level if the alien was
previously deported after a conviction for a felony or aggravated
felony:
(1) If the defendant previously was deported after a
conviction for a felony, other than a felony involving
violation of the immigration laws, increase by 4 levels.
(2) If the defendant previously was deported after a
conviction for an aggravated felony, increase by 16 levels.
U.S.S.G. § 2L1.2(b) (1995) (emphasis in original). The application
note defining “aggravated felony” provides:
“Aggravated felony,” as used in subsection (b)(2), means
murder; any illicit trafficking in any controlled substance
(as defined in 21 U.S.C. § 802), including any drug
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trafficking crime as defined in 18 U.S.C. § 924 (c)(2); any
illicit trafficking in any firearms or destructive devices as
defined in 18 U.S.C. § 921; any offense described in 18 U.S.C.
§ 1956 (relating to laundering of monetary instruments); any
crime of violence (as defined in 18 U.S.C. § 16, not including
a purely political offense) for which the term of imprisonment
imposed (regardless of any suspension of such imprisonment) is
at least five years; or any attempt or conspiracy to commit
any such act. The term “aggravated felony” applies to
offenses described in the previous sentence whether in
violation of federal or state law and also applies to offenses
described in the previous sentence in violation of foreign law
for which the term of imprisonment was completed within the
previous 15 years. See 8 U.S.C. § 1101(a)(43).
U.S.S.G. § 2L1.2, comment. (n. 7)(1995) (emphasis added). While
the definition in application note 7 does not expressly state that
a conviction under § 922(g)(5) is an aggravated felony, Section
1101(a)(43) of the INA expressly defines a violation of § 922(g)(5)
as an aggravated felony. The crux of this appeal, therefore, is
whether the “See” cite to Section 1101(a)(43) actually incorporates
the definitions contained in that section to the enhancement
provision in U.S.S.G. § 2L1.2(b)(2), or whether it is merely a
reference as to the source of the enumerated aggravated felonies in
note 7 to § 2L1.2(b). The circuits that have addressed this
precise issue have split.
The Eighth Circuit has held that Section 1101(a)(43) has been
incorporated in full. United States v. Maul-Valverde, 10 F.3d 544,
545 (8th Cir. 1993) (“Both [8 U.S.C. § 1326(b)] and [U.S.S.G. §
2L1.2(b)(2)] use the definition of aggravated felony found in 8
U.S.C. § 1101(a)(43).”).
The Ninth and Seventh Circuits have determined that the
Sentencing Commission intended to apply the 16-level enhancement
only to specifically listed felonies. In United States v. Rios-
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Favela, --- F.3d ---, 1997 WL 345959 (9th Cir. June 25, 1997), the
Ninth Circuit rejected the Eighth Circuit’s analysis:
In defining which aggravated felonies warranted the sixteen-
level adjustment, the Sentencing Commission considered the
statutory definition of “aggravated felony” provided in 8
U.S.C. § 1101(a)(43), as evidenced by its direction in note 7
to “see” the statute. Although at least one other circuit has
held that the Sentencing Commission adopted in full the
statutory definition of aggravated felony provided in 8 U.S.C.
§ 1101(a)(43), see Maul-Verde, 10 F.3d at 545 . . . , we
disagree. We conclude that the Commission formulated a nearly
identical yet nonetheless distinct list of offenses that
qualify as aggravated felonies for sentencing purposes.
Id. at *4.
The Seventh Circuit has also held that the Sentencing
Commission did not intend for 8 U.S.C. § 1326 and U.S.S.G. § 2L1.2
to operate symmetrically. United States v. Munoz-Cerna, 47 F.3d
207, 212 (7th Cir. 1995) (“[W]e believe it is quite clear that no
symmetry was intended between the aggravated felony provisions of
[the INA] and the aggravated felony provisions of the guideline.”).
Reyna-Espinosa does not dispute that a conviction for being an
alien in possession of a weapon is an aggravated felony under the
INA:
Mr. Reyna’s conviction under 18 U.S.C. § 922(g)(5) very
well may make him ineligible for asylum or relief from
deportation and exclusion from the United States; the INA
expresses national policy concerning an alien’s privilege to
enter or reside in the United States.
Appellant’s Brief at 11. The appellant argues, however, that a
prior conviction for being an alien in possession of a weapon is
not an aggravated felony for purposes of enhancement under the
Guidelines.
The government argues that the “See” cite to Section
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1101(a)(43) implies that Congress did not intend to limit the scope
of the definition of “aggravated felony” for purposes of Section
2L1.2(b)(2). Reyna-Espinosa claims that the “See” cite is not a
term of incorporation. The appellant argues that the Sentencing
Commission did not use inclusive language in Note 7; instead it
employed specific and exclusive language, stating that aggravated
felony “means,” followed by a full paragraph of definition of
crimes2 derived from only 5 of 21 paragraphs of § 1101(a)(43).
Reyna-Espinosa claims that the Sentencing Commission could have
easily directly incorporated all felonies contained in 1101(a) and
did not.
Reyna-Espinosa also argues that the definition of the signal
“See” does not support the government’s argument:
The citation signal “See” used by the Sentencing
Commission is not a term of incorporation. According to the
most recent edition of The Bluebook, “See”, is used to show
that the “[c]ited authority clearly supports the
proposition.[”] Harvard L. Rev. Ass’n, The Bluebook - A
Uniform System of Citation § 1.2 (15th ed. 1991). “See”
merely is an introductory signal indicating support. Id.
Appellant’s Brief at 11.
We note that the first version of § 2L1.2 provided for a 4-
level enhancement for a prior felony, without specifically
providing for aggravated felonies. U.S.S.G. § 2L1.2 (eff. Nov. 1,
1989). The commentary to that version of § 2L1.2 suggested that an
upward departure may be warranted if the prior conviction was an
2
The only offense from the definition of aggravated felony in application
note 7 that relates to firearms involves trafficking in firearms in violation of
18 U.S.C. § 921. The government does not argue that the defendant’s sentence was
enhanced under this definition, and the district court did not base its
enhancement on this definition.
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aggravated felony “as defined in 8 U.S.C. § 1101(a) . . . or for
any other violent felony.” U.S.S.G. § 2L1.2, comment. (n.3) (eff.
Nov. 1, 1989). In 1991, § 2L1.2 was amended to include the current
section and its application note. Congress amended 8 U.S.C. §
1101(a)(43) in 1994, expanding the definition of “aggravated
felony.” Pub.L.No. 103-416, 108 Stat. 4320-22 (1994). The
Guidelines were not correspondingly amended; thus, the Guidelines’
list of aggravated felonies mirrors that of the pre-1994 version of
8 U.S.C. § 1101(a)(43).
We agree with the Ninth and Seventh Circuits that the
definition of “aggravated felony” for purposes of § 2L1.2(b)(2) is
limited to the felonies expressly listed in application note 7.
Section 1101(a)(43) is not incorporated wholly by the reference
signal “see.” Accordingly, Reyna-Espinosa’s prior § 922(g)(5)
conviction is not an aggravated felony under § 2L1.2(b)(2).
Alternatively, the government argues, as it did at the
appellant’s sentencing, that the underlying facts of Reyna-
Espinosa’s offense under § 922(g)(5) support an enhancement for a
prior aggravated felony conviction. This argument is without
merit. This circuit has rejected the argument that a sentencing
court should look to the underlying facts to determine whether a
prior conviction was a crime of violence and, thus, an aggravated
felony for purposes of § 2L1.2. United States v. Velazquez-Overa,
100 F.3d 418, 421 (5th Cir. 1996)(“A sentencing court need only
consider the fact that [the defendant] was convicted and the
inherent nature of the offense.”), cert. denied, -- U.S. --, 117
8
S.Ct. 1283 (1997).
CONCLUSION
We conclude that the reference to 18 U.S.C. § 1101(a)(43) in
the Commentary to U.S.S.G. § 2L1.2 does not constitute a complete
incorporation of that statute. Instead, we must look to the
felonies expressly enumerated in the Commentary for the definition
of aggravated felony under U.S.S.G. § 2L1.2. Consequently, a
conviction under 18 U.S.C. § 922(g)(5) is not an aggravated felony
for purposes of increasing a defendant’s offense level under
U.S.S.G. § 2L1.2(b). Accordingly, Reyna-Espinosa’s sentence is
VACATED and the case is REMANDED to the district court for
resentencing.
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