F I L E D
United States Court of Appeals
Tenth Circuit
PU BL ISH
August 8, 2006
UNITED STATES CO URT O F APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
U N ITED STA TES O F A M ER ICA,
Plaintiff - Appellee,
v. No. 05-2013
JESU S COR DO V A -A REV A LO,
Defendant - Appellant.
Appeal from the United States District Court
for the District of New M exico
(D.C. No. CR-04-1159 JB)
Terri J. Abernathy, Assistant United States Attorney (David C. Iglesias, United
States Attorney, on the brief) Las Cruces, New M exico, for Plaintiff - Appellee.
Richard C. Cauble, Las Cruces, New M exico, for D efendant - Appellant.
Before BR ISC OE, A N D ER SON and O’BRIEN, Circuit Judges.
O’BRIEN, Circuit Judge.
On June 18, 2004, Jesus Cordova-Arevalo (Cordova-Arevalo) pled guilty to
illegally reentering the United States after deportation in violation of 8 U.S.C. §
1326(a)(1),(2). The presentence investigation report (PSR ) recommended a
sixteen-level enhancement pursuant to USSG §2L1.2(b)(1)(A), treating Cordova-
Arevalo’s prior Colorado conviction (third degree assault) as a felony crime of
violence. 1 The enhancement resulted in a total offense level of twenty-one. 2
Coupled with a criminal history category of IV, Cordova-Arevalo’s sentencing
guideline range was fifty-seven to seventy-one months imprisonment.
Cordova-Arevalo did not contest the PSR’s sixteen-level enhancement
recommendation. Rather he argued that because Colorado classifies his prior
conviction as a misdemeanor, 3 he should be sentenced under 8 U.S.C. § 1326(a),
which caps a sentence at two years incarceration. The government defended the
1
The PSR applied the 2003 edition of the guideline manual in determining
its sentence recommendation. USSG §2L1.2, Unlawfully Entering or Remaining
in the United States, is the applicable guideline for § 1326 convictions. USSG
§2L1.2 provides in relevant part: “[I]f the defendant previously was deported, or
unlaw fully remained in the United States after a conviction for a felony . . . that is
a crime of violence . . . increase [the offense level] by 16 levels . . . .” A “crime
of violence” is defined, inter alia, as “any offense under federal, state or local
law that has as an element the use, attempted use, or threatened use of physical
force against the person of another.” USSG § 2L1.2, comm ent. (n.1(B)(iii)). The
guideline, like the statute, does not define the term felony. But a definition is
supplied in the commentary to §2L1.2 which defines a felony as “any federal,
state, or local offense punishable by imprisonment for a term exceeding one
year.” U SSG §2L1.2, comment. (n. 2).
2
Cordova-Arevalo’s base offense level was eight. The sixteen-level
enhancem ent imposed pursuant to U SSG §2L1.2 resulted in an adjusted offense
level of twenty-four. Cordova-A revalo also received a three-level downward
adjustment for acceptance of responsibility, resulting in a total offense level of
twenty-one.
3
For this offense the Colorado court sentenced Cordova-Arevalo to time
served (ten days in jail) and remanded him to INS custody for deportation
proceedings.
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PSR recommendation contending the sentencing guidelines should apply,
regardless of the state classification. The guidelines treat the prior conviction as
a felony, calling for a sentence under 8 U.S.C. § 1326(b) with a maximum of
twenty years incarceration. At the December 8, 2004 sentencing hearing
Cordova-Arevalo also argued the proper classification of his Colorado conviction
(misdemeanor or felony) turned upon a factual determination, i.e., the seriousness
of the acts upon which the Colorado conviction was based. 4 He contends such
judicial fact finding is prohibited by Blakely v. Washington, 542 U.S. 296 (2004).
Finally, he claims a sixteen-level enhancement was unreasonable considering the
relatively benign acts of misconduct (as he regards them) in the Colorado case.
4
A Colorado third degree assault is categorically a crime of violence under
the second prong of USSG § 4B1.2(a). United States v. Krejcarek, — F.3d — ,
2006 W L 1892573, *2 (10th Cir. July 11, 2006); United States v. Paxton, 422
F.3d 1203, 1207 (10th Cir. 2005). However, the Colorado third degree assault
statute “does not necessarily include the use or threatened use of physical force”
as required by USSG §2L1.2 and, therefore, its application is subject to review
under Shepard v. United States, 544 U.S. 13 (2005). United States v. Perez-
Vargas, 414 F.3d 1282, 1287 (10th Cir. 2005). In this case, Cordova-A revalo’s
crime is analyzed for the purposes of USSG §2L1.2. Nonetheless, Cordova-
Arevalo has not raised a claim that his violation of Colo. Rev. Stat. § 18-3-204
was not “a crime of violence.” W e assume the absence of this argument was
Cordova-A revalo’s deliberate decision due to the circumstances of his offense.
Though the PSR treated the Colorado conviction as a crime of violence, it did not
refer to judicial documents detailing the elements of the offense of conviction.
Cordova-Arevalo’s objections to the PSR did not mention that deficiency but
instead conceded the Colorado conviction is a felony for purposes of the
sentencing guidelines. He went on to say: “Although said calculation of offense
level is extremely unfair and harsh for the defendant, the definition of ‘felony’
under 2L1.2 does appear to be met. Accordingly, and unfortunately, the guideline
offense level is 21.”
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The district judge rejected those arguments, applied the guideline definition of
felony and decided Blakely did not apply to “any facts or issues related to a prior
conviction.” 5 (Sentencing Tr. at 10.) Cordova-Arevalo was sentenced to fifty-
seven m onths imprisonment, the low end of the guideline range. The court also
issued an alternate sentence of fifty-seven months in the event the guidelines
would be determined unconstitutional. This timely appeal followed.
A. Definition Of Felony
At issue is the definition of the word “felony” as it is used in 8 U.S.C. §
1326(b). 6 W e review de novo the district court’s interpretation of a statute.
5
Apparently a reference to Almendarez-Torres v. United States, 523 U.S.
224, 226 (1998).
6
8 U.S.C. § 1326 provides in relevant part:
Reentry of removed aliens
(a) In general
Subject to subsection (b) of this section, 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, or imprisoned not more than 2 years, or
both.
(b) Criminal penalties for reentry of certain removed aliens
Notwithstanding subsection (a) of this section, in the case of any
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United States v. Clemente E., 392 F.3d 1164, 1165 (10th Cir. 2004). Doing so
allows us to quickly dispose of Cordova-Arevalo’s “factual dispute” regarding the
classification of his offense. His argument simply miscasts a legal conclusion as
a factual dispute. The prior conviction, which is undisputed, is the relevant
“fact,” not the specific acts of misconduct giving rise to that conviction. 7 That
brings us to the issue of statutory construction.
The government argues USSG §2L1.2, including its incorporated definition
alien described in such subsection--
(1) whose removal was subsequent to a conviction for comm ission of
. . . a felony (other than an aggravated felony), such alien shall be
fined under Title 18, imprisoned not more than 10 years, or both; . . .
.
(2) whose removal was subsequent to a conviction for comm ission of
. . . an felony (other than an aggravated felony), such alien shall be
fined under Title 18, imprisoned not more than 10 years, or both . . . .
7
Such a fact based inquiry is forbidden by the categorical approach we
must follow with respect to prior convictions. Shepard, 544 U.S. at 26 (“[T]o
determine whether a plea of guilty to burglary defined by a nongeneric statute
necessarily admitted elements of the generic offense is limited to the terms of the
charging document, the terms of a plea agreement or transcript of colloquy
between judge and defendant in which the factual basis for the plea was
confirmed by the defendant, or to some comparable judicial record of this
information.”); Taylor v. United States, 495 U.S. 575, 602 (1990). But that is not
to say the punishment imposed, evident from the judgment and sentence, and the
reasonable inferences to be drawn from it cannot be considered in deciding if a
departure from the guidelines is appropriate or, post-Booker, an exercise of
sentencing discretion is warranted. See United States v. Trujillo-Terrazas, 405
F.3d 814, 819 (10th Cir. 2005) (“The relatively trivial nature of M r. Trujillo's
criminal history is at odds with the substantial 16-level enhancement
recommended by the G uidelines for this conduct.”).
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of “felony,” applies here. Cordova-Arevalo concedes the guidelines definition
controls in defining the term felony under U SSG §2L1.2 for sentence calculation
purposes. However, he contends the calculation of his sentence under the
guideline does not alter the statutory cap on his sentence if the definition of
felony in the statute is determined by state classifications. According to Cordova-
Arevalo, because the term “felony” in subsection 1326(b) is not defined in the
statute and could be construed by either a state or a federal definition, the term is
ambiguous. Not surprisingly he thinks the state definition should control.
However, we need look only to basic tenets of statutory construction to conclude
the district court correctly determined a “felony” under § 1326(b)(1) is “an
offense punishable by a maximum term of imprisonment of more than one year.”
See 18 U.S.C. § 3156(3). 8
Statutory Construction
The purpose of our inquiry is to determine whether Congress intended to
use “felony” to refer to the state’s classification or to a broad federal concept.
W hile the language in subsection 1326(b)(1) provides little direction, we consider
“the plainness or ambiguity of statutory language . . . by reference to . . . the
specific context in which that language is used, and the broader context of the
statute as a whole.” Sierra Club v. El Paso Gold M ines, Inc., 421 F.3d 1133,
8
W e reached the same conclusion in a recent unpublished decision, United
States v. Ordonez-N avarette, 154 F.App. 66 (10th Cir. 2005).
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1142 (10th Cir. 2005). W hen we view subsection 1326(b) from that perspective,
the term felony carries but one meaning.
To determine what is meant by “felony” in the specific context of
subsection 1326(b)(1), we look to the common understanding and historical use of
the word. As defined by Black’s Law Dictionary, “[F]elony” is “a serious crime
usu[ally] punishable by imprisonment for more than one year or by death.” Id. at
633 (7th Ed. 1999). Prior to the Sentencing Reform Act of 1984, 18 U.S.C. § 1
defined the term felony as “[a]ny offense punishable by death or imprisonment for
a term exceeding one year.” Congress repealed 18 U.S.C. § 1 in the passage of
the Sentencing Reform Act of 1984 (effective November 1, 1987), but at the same
time it implicitly retained an identical definition of felony within 18 U.S.C. §
3559(a). In § 3559(a), Congress classified offenses for sentencing purposes and
identified different grades of felonies according to the maximum sentence
applicable to the offense. 18 U.S.C. § 3559(a)(1)-(5). The classes of felonies run
from an offense punishable by a term of over one year imprisonment to an offense
punishable by death. Id. The least egregious felony offense is a class E felony –
an offense punishable by a term of imprisonment of less than five years but more
than one year. 18 U.S.C. § 3559(a)(5). Thus, Congress has clearly defined a
felony by the terms of the maximum punishment attributable to an offense.
Considering the term “felony” in the context of the statute as a whole, the
Congressional intent is unmistakable. Congress enacted the penalty subsections
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(b)(1) and (2) of § 1326 together in 1988 to provide a sentence enhancement for
recidivism. Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998)
(“[W ]e believe that Congress intended to set forth a sentencing factor in
subsection (b)(2) and not a separate criminal offense.”). 9 Along with many other
circuits, we have held the term “aggravated felony” in subsection (b)(2) is “an
offense [which] need not be classified [by a state] as a felony to qualify as an
‘aggravated felony’.” United States v. Saenz-M endoza, 287 F.3d 1011, 1014
(10th Cir. 2002). Absent any contrary indication, there is no reason Congress
would harbor a different intent when using the broader term “felony” in
subsection (b)(1).
Such construction furthers the Congressional quest for uniformity in federal
sentencing. See United States v. Diaz-Bonilla, 65 F.3d 875, 877 (10th Cir.
1995). 10 That same purpose of the Sentencing Reform Act remains vital today.
9
The Court did not express a view as to whether later-amended 8 U.S.C. §
1326(3) and (4) create new offenses or are merely sentencing enhancements.
Almendarez, 523 U.S. at 237.
10
Diaz-Bonilla was based on the definition of “felony offense” found in
USSG §4A1.2(o) which provides, “For the purposes of §4A1.2(c) [Sentences
Counted and Excluded], a “felony offense” means any federal, state or local
offense punishable by death or a term of imprisonment exceeding one year,
regardless of the actual sentence imposed.” In 1997, the commission added the
definition of “felony” to the commentary to USSG §2L1.2. See Appendix C,
Amendment 562 (1997). In 2001, the commission struck §2L1.2 and its
accompanying commentary and inserted a replacement guideline in an effort to
respond to concerns that the former §2L1.2 sometimes resulted in
disproportionate penalties. See Appendix C, Vol. II, A mendment 632 (2001).
The amendment provided a more graduated sentencing enhancement. Id. The
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See United States v. Booker, 543 U.S. 220, 252 (2005) (“Congress’ basic goal in
passing the Sentencing Act was to move the sentencing system in the direction of
increased uniformity.”) (internal citations omitted). Should the meaning of the
word “felony” default to state definitions, this purpose would be severely
undermined. Given Congress’ well-documented and recognized quest for
uniformity in sentencing, it is certain that Congress intended the term “felony” in
8 U.S.C. § 1326(b) to carry its federal connotation consistent with the sentencing
guidelines and historical federal usage.
Cordova-Arevalo argues the state definition is appropriate because state
courts are much more familiar with state offenses. He also stresses that the
Colorado sentencing court imposed only ten days incarceration and complains that
the indirect consequence of his Colorado misdemeanor conviction more than
quadrupled his sentencing in this case. The argument misdirects our attention.
Certainly, state courts are more familiar with state statutes and offenses. But that
fact is immaterial to this issue. The sentence imposed here is for a violation of
federal law. How prior convictions aggravate a federal sentence is likewise a
matter of federal law and policy. As a result, we have no trouble concluding the
definition of the term “felony” imported into 8 U.S.C. § 1326(b) through 18
amendment also deleted an application note providing for downward departures
based on the seriousness of the former offense because the graduated
enhancement negated the need for the departure provision. Id. In 2003, the
comm ission’s amendments to the commentary included moving the definition of
felony from note 1 to note 2. See Appendix C, Vol. II, Amendment 658 (2003).
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U.S.C. § 3559(a) and incorporated into USSG §2L1.2 commentary note 2 is
consistent with an articulated federal scheme and purpose and is applicable
despite a state’s contrary classification of an offense.
Blakely/Booker
W e now turn to Cordova-Arevalo’s Blakely argument. After Cordova-
Arevalo’s sentencing, the Supreme Court decided Booker, 534 U.S. 220 (2005).
In Booker, the Supreme Court extended its holding in Blakely to the federal
sentencing guidelines, holding the Sixth Amendment requires “[a]ny fact (other
than a prior conviction) which is necessary to support a sentence exceeding the
maximum authorized by the facts established by a plea of guilty or a jury verdict
[to] be admitted by the defendant or proved to a jury beyond a reasonable doubt.”
534 U.S. at 244. To remedy the constitutional infirmity of the guidelines, Booker
invalidated their mandatory nature, requiring the district court to consult them in
an advisory fashion. 11 Id. at 245-46 (severing and excising 18 U.S.C. §§
3553(b)(1), 3742(e)). Under Booker, a district court could potentially make tw o
distinct types of error:
First, a court could err by relying upon judge-found facts, other
than those of prior convictions, to enhance a defendant's sentence
mandatorily. As Booker makes clear, the Sixth Amendment
prohibits this practice . . . . Second, a sentencing court could err
11
Booker applies to all cases on direct review. Id. at 268. W e apply both
Blakely and Booker to this appeal. See United States v. Clifton, 406 F.3d 1173,
1175 n.1 (10th Cir. 2005) (“W e must apply the holdings in Blakely and Booker to
all cases in which a defendant properly raised an issue under either case.”).
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by applying the Guidelines in a mandatory fashion, as opposed to
a discretionary fashion, even though the resulting sentence was
calculated solely upon facts that were admitted by the defendant,
found by the jury, or based upon the fact of a prior conviction.
W hile this type of sentence does not violate the Sixth
Amendment, such a sentence is nonetheless imperm issible
because the Court severed the portion of the Sentencing Reform
Act that required the mandatory application of the Guidelines.
United States v. Gonzalez-Huerta, 403 F.3d 727, 731-32 (10th Cir.) (internal
citations omitted), cert. denied, 126 S.Ct. (2005). Because Cordova-Arevalo
preserved this issue, we review for harmless error. United States v. Labastida-
Segura, 396 F.3d 1140, 1143 (10th Cir. 2005).
Cordova-Arevalo contends that, given the facts of his Colorado offense, the
district court’s mandatory application of the guidelines resulted in an
unreasonably harsh sentence. Thus, Cordova-Arevalo claims his sentence is
unreasonable.
Cordova-Arevalo asserts his case is similar to United States v. Trujillo-
Terrazas, 405 F.3d 814 (10th Cir. 2005). There, the district court imposed a
sentence of forty-one months pursuant to USSG §2L1.2(a)(1)(A)(ii) based upon a
state conviction for third-degree arson. The defendant had thrown a lit match into
a car and received a sentence of a $35.00 restitution payment. Id. at 817. W e
determined the sentence was plain error and remanded for re-sentencing, in large
part, because the district court clearly expressed discomfort at the harshness of
the mandatory sentence. Id. at 820.
However, Cordova-Arevalo’s case is readily distinguished from Trujillo-
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Terrazas. Rather than expressing hesitancy or concern regarding the length of
Cordova-Arevalo’s sentence the district court went out of its way to embrace the
guidelines sentence. Thus, the non-constitutional error here is more similar to
that considered in United States v. Serrano-Dominguez, 406 F.3d 1221, 1224
(10th Cir. 2005). In Serrano, the district court issued an identical alternative
sentence in the event the guidelines were found to be unconstitutional. W e
concluded the nonconstitutional error claimed by Serrano to be harmless because
“[t]he district court's statement eliminates any need to speculate about what it
would do on remand.” Id.
The situation here is similar. At Cordova-Arevalo’s sentencing hearing, the
district court also issued an alternative sentence of fifty-seven months, stating:
[A]fter taking into account all of the arguments made by counsel, as
well as review ing the briefs and review ing the Presentence Report –
and I have review ed those twice, since we have prepared for this
hearing a couple of times to really prepare for the objection – the
Court will also impose an alternative sentence of 57 months, with all
other conditions being the same.
(R. Vol. III at 15.) As this statement illustrates, a remand would be futile. It is
clear the district court would impose the same sentence under an advisory
guideline regime. See United States v. Thompson, 403 F.3d 533, 536 (8th Cir.
2005) (remand would be futile in light of identical alternative sentence).
M oreover, C ordova-A revalo’s sentence is within the guidelines range. An
exercise of discretion in imposing a properly computed sentence under the
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guidelines is presumptively reasonable, a presumption Cordova-Arevalo has
failed to rebut. See United States v. Kristl, 437 F.3d 1050, 1055 (10th Cir. 2006)
(“If . . . the district court properly considers the relevant Guidelines range and
sentences the defendant within that range, the sentence is presumptively
reasonable.”). As a result, any error in the district court’s use of mandatory
guidelines was harmless.
A FFIR ME D.
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