UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-50363
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
V.
TOMAS YANEZ-HUERTA,
Defendant - Appellant.
Appeal from the United States District Court
For the Western District of Texas -- Del Rio Division
March 23, 2000
Before SMITH, BARKSDALE, and PARKER, Circuit Judges:
PER CURIAM:
Defendant pleaded guilty to illegal reentry as a deported
alien in violation of 8 U.S.C. § 1326. The district court denied
defendant’s motion for a downward departure, because his five-year
suspended term of imprisonment for a prior aggravated felony
rendered him ineligible for a downward departure in sentencing
based on the seriousness of the underlying felony. We AFFIRM.
I.
In December 1996, Defendant Tomas Yanez-Huerta, a Mexican
citizen, was stopped for riding a bicycle without a safety helmet
in Dallas, Texas. Visibly intoxicated at the time, he was arrested
and searched. The search revealed 1.8 grams of cocaine in his
possession. Yanez-Huerta was prosecuted for possession of cocaine
in Texas state court and received a sentence of five years
confinement, suspended and probated for five years. He was then
deported to Mexico in June 1998. Less than five months later,
Yanez-Huerta was back on the road to the Big D. A Border Patrol
agent stopped the truck in which he was a passenger after
witnessing two individuals jump out of the brush and into the truck
near Del Rio, Texas.
Yanez-Huerta pleaded guilty to a charge of unlawful reentry as
a deported alien. See 8 U.S.C. § 1326 (1994). He was subject to
a 16-level increase to his sentence under United States Sentencing
Guideline (“U.S.S.G.”) §2L1.2, because of his earlier conviction
for cocaine possession. In the presentence report, the probation
officer recommended that Yanez-Huerta’s offense level be tripled,
from level 8 to level 24, to reflect the earlier conviction for an
“aggravated felony.” See §2L1.2(b)(1)(A).1 After a three-level
reduction for acceptance of responsibility, pursuant to §3E1.1,
Yanez-Huerta’s total offense level was 21 and his criminal history
category was IV, resulting in a guideline range of 57 to 71 months.
Yanez-Huerta did not challenge the guideline calculation, but
did move for a downward departure pursuant to U.S.S.G. §2L1.2,
Application Note 5. Note 5 provides for a two-level downward
departure when a criminal defendant has only a single non-violent
underlying felony that resulted in a “term of imprisonment imposed”
1
Yanez-Huerta also had three prior misdemeanor convictions, all
for illegally entering the United States.
2
of less than one year. Appellant’s eligibility for this particular
departure hinged entirely on whether his five-year suspended
sentence qualifies as a “term of imprisonment imposed” of less than
one year. Essentially, appellant argues that “term of imprisonment
imposed” should be read as “term of imprisonment served.” The
district court rejected this argument, denied Yanez-Huerta’s motion
for departure, and sentenced him to 57 months imprisonment. Yanez-
Huerta appeals, challenging only the denial of his motion for a
downward departure.
II.
This court reviews a district court’s application and
interpretation of the Sentencing Guidelines de novo and its
findings of fact for clear error. See United States v. Sharpe, 193
F.3d 852, 872 (5th Cir. 1999). However, this court has
jurisdiction to review a defendant's challenge to a sentence only
if it was (1) imposed in violation of law, (2) imposed as a result
of an incorrect application of the Guidelines, (3) resulted from an
upward departure, (4) or was unreasonably imposed for an offense
not covered by the sentencing guidelines. See United States v.
Ogbonna, 184 F.3d 447, 451 (5th Cir. 1999). "The imposition of a
lawful sentence coupled with the decision not to depart from the
guidelines provides no ground for relief." United States v. Miro,
29 F.3d 194, 198-99 (5th Cir. 1994). We have jurisdiction to
review the district court's decision not to depart downward from
the guideline range only if the court based its decision upon an
erroneous belief that it lacked the authority to depart. See
3
Ogbonna, 184 F.3d at 451 n.5. A refusal to grant a downward
departure is a violation of law only if the court mistakenly
assumes that it lacks authority to depart. See United States v.
Burleson, 22 F.3d 93, 95 (5th Cir. 1994). Finally, there must be
“something in the record [to] indicate that the district court held
such an erroneous belief." United States v. Landerman, 167 F. 3d
895, 899 (5th Cir. 1999).
In this case, defense counsel asked the district court to
clarify its holding concerning the denial of defendant’s motion on
the record. The district court explained, “were this an original
proposition put to the court, the court might very well adopt the
suggestion made by defendant’s counsel, but the Fifth Circuit has
made it abundantly plain that they are not going to uphold any such
action on the part of a federal district judge.” Defense counsel
then inquired, “. . . I gather from what the court has indicated
that the Court feels that it doesn’t have authority based on prior
Fifth Circuit decisions.” To which the district court replied, “I
sure do. That’s exactly what I feel.” Accordingly, this court has
jurisdiction to review whether the refusal was proper.
III.
Since Yanez-Huerta reentered the United States after being
deported for committing an aggravated felony, his base offense
level was enhanced by 16 levels from 8 to 24. See U.S.S.G.
§§2L1.2(a). However, the present version of Application Note 5 of
§2L1.2, effective November 1, 1997, provides that if
(A) the defendant has previously been convicted of only
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one felony offense ; (B) such offense was not a crime of
violence or firearms offense; and (C) the term of
imprisonment imposed for such offense did not exceed one
year, a downward departure may be warranted based on the
seriousness of the aggravated felony.
Yanez-Huerta does not dispute that he was deported after being
convicted for an aggravated felony; the Government does not dispute
that Yanez-Huerta has only a single underlying felony conviction,
and this conviction for possession of cocaine was a non-violent
offense. Hence, it is the third prong of Application Note 5 on
which the parties differ. Specifically, does a suspended sentence
for an aggravated felony constitutes a "term of imprisonment
imposed?"
The current §2L1.2 does not define "term of imprisonment
imposed," nor does it explicitly incorporate a definition from the
Title VIII of the United States Code. The prior version of §2L1.2
did not contain the current Application Note 5, but did contain the
phrase “term of imprisonment” in another application note that
defined “aggravated felony.” Prior to its amendment in 1996,
“aggravated felony” was defined, in part, an offense “for which the
term imprisonment imposed (regardless of any suspension of such
imprisonment) . . .” 8 U.S.C. § 1101(a)(43)(F), (G), and (N)
(1994). The “regardless of suspension” parenthetical was
eliminated by the 1996 amendments. Instead, Congress augmented the
definitional provisions governing “convictions” to clarify that:
Any 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
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of law regardless of any suspension of the imposition or
execution of that imprisonment or sentence in whole or in
part.
8 U.S.C. § 1101(a)(48)(B)(1999)(emphasis added).
From this reorganization, Appellant gleans that the amendments
have a substantive purpose -- specifically, congressional intent to
exclude suspended sentences. Essentially, Appellant argues that if
the Sentencing Commission wanted to include suspended sentences, it
would have used the same language that it earlier employed.
We find this argument unpersuasive. First, there is no
evidence that this change was intended to serve a substantive
purpose, let alone the one proposed by Appellant. The amendment
served the obvious purpose of simplification by reducing the number
of identical parentheticals from four to one. There is nothing in
the statutory amendments nor the guidelines to suggest that such a
substantive amendment was intended.
Second, Appellant is unable to explain why the clear statement
in general provisions section § 1101(a)(48)(b) should not apply.
Guideline §2L1.2 expressly incorporates the definition of
“aggravated felony” contained in § 1101(a)(43). Logic dictates
that if Application Note 5 refers to a “term of imprisonment”
imposed with respect to an offense defined by § 1101(a)(43), §
1101(a)(48)(B) applies.2 We essentially adopted this position in
2
Also, Amendment 562 explicitly states that the 1997
amendment to §2L1.2 “conforms the definition of 'aggravated felony’
in the guidelines with the amended definition in the Immigration
and Nationality Act.” U.S.S.G. Appendix C, amendment 562 at 413.
6
United States v. Banda-Zamora, 178 F.3d 728, 730 ( 5th Cir. 1999),
in which we concluded, "§ 1101 offers a series of definitions
applicable to the entire chapter [such that] the definition in §
1101(a)(48)(B) applies recursively" to the other definitions in §
1101(a)(43).
Similarly, the transfer of the “suspended sentence”
parenthetical from the definitions of, inter alia, “crime of
violence,” “theft offense” to the definition of the broader term
“conviction”, does not support a conclusion that Congress no longer
intended a suspended sentence to be considered a sentence of a
"term of imprisonment imposed” As we have earlier stated when
discussing the predecessor version of §2L1.2, "[c]learly, the
Sentencing Commission envisioned [§ 2L1.2's] applicability to
extend to those defendants who actually are ordered to serve their
sentences and also those defendants who avoid a determined period
of incarceration by a process which suspends serving the term of
imprisonment.” United states v. Ramos-Garcia, 95 F.3d 369, 371
(5th Cir. 1996) (quoting United States v. Vasquez-Balandran, 76
F.3d 648, 651 (5th Cir. 1996).
In conclusion, we hold that because Application Note 5 refers
to a term of imprisonment imposed with respect to an offense
defined by § 1101(a)(43), § 1101(a)(48)(B) applies. Consequently,
§2L1.2's "term of imprisonment imposed" includes sentences imposed
regardless of any suspension of the imposition or execution of that
imprisonment.
On this point we are in accord with the Tenth Circuit, the
7
lone circuit court to have addressed the effect of these particular
amendments. See United States v. Chavez-Valenzuela, 170 F.3d 1038
(10th Cir. 1999). Additionally, the circuit courts which addressed
"term of imprisonment" under the pre-amendment era § 2L1.2
interpreted it to mean the sentence imposed, regardless of
suspensions, rather than the time actually served. See United
States v. Galicia-Delgado, 130 F.3d 518, 520 (2d Cir. 1997); United
States v. Cordova-Beraud, 90 F.3d 215, 218-19 (7th Cir. 1996). The
changes made by the 1996 amendments do not suggest that Congress
meant to overturn this interpretation of the term.
IV.
Yanez-Huerta is not entitled to a downward departure under
§2L1.2 if a term of imprisonment of more than one year was imposed
for his prior aggravated felony. Guideline §2L1.2 defines
aggravated felony in relation to § 1101(a)(43), and §
1101(a)(48)(B) applies recursively, "term of imprisonment imposed"
includes suspended sentences. Therefore, Yanez-Huerta's five-year
suspended term of imprisonment exceeded the one-year maximum
specified in Application Note 5, making him ineligible for a
departure based on the relatively minor nature of his underlying
felony conviction.3 Accordingly, the district court was correct to
3
Appellant also sought a downward departure for the
relatively minor nature of his underlying felony pursuant to the
district court’s general authority to depart under §5K2.0. In this
particular instance, a §5K2.0 downward departure would essentially
duplicate the §2L1.2 provisions established by the Sentencing
Commission to afford a criminal defendant a possible downward
departure to lessen the effect that a relatively minor underlying
8
deny the motion for a downward departure under that provision. The
judgment of the district court is therefore AFFIRMED.
felony conviction can have on his offense level. Cf. Koon v.
United States, 518 U.S. 81, 91-94 (1996). Because a §5K2.0
departure would have been based on factors already taken into
account by §2L1.2, the district court properly addressed the
appropriateness of a downward departure solely under the criteria
set forth in the latter provision.
9