United States Court of Appeals
For the First Circuit
No. 03-2666
UNITED STATES OF AMERICA,
Appellee,
v.
SILVERIO CORDOZA-ESTRADA,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Steven J. McAuliffe, U.S. District Judge]
Before
Boudin, Chief Judge,
Torruella, Circuit Judge,
and Saris,* District Judge.
Bjorn Lange, Assistant Federal Public Defender, for appellant.
Mark S. Zuckermann, Assistant United States Attorney, with
whom Thomas P. Colantuono, United States Attorney, was on brief for
appellee.
September 29, 2004
*
Of the District of Massachusetts, sitting by designation.
PER CURIAM. On August 22, 2001, Defendant-Appellant
Silverio Cordoza-Estrada, a citizen of Mexico, was convicted of
simple assault in New Hampshire state district court for punching
a man in the face, breaking his nose. He was sentenced to twelve
months of imprisonment with ten months suspended. Following this
conviction, Cordoza-Estrada was deported. Two years later, he was
arrested at his place of work in Hudson, New Hampshire. After
pleading guilty to a one-count information, Cordoza-Estrada was
convicted of re-entering the United States after being deported, in
violation of 8 U.S.C. §§ 1326(a) and 1326(b)(2), and sentenced to
eighteen months of imprisonment and three years of supervised
release. He now appeals his sentence, arguing that his prior
conviction for a simple assault was a misdemeanor under New
Hampshire law and should not have been treated as an “aggravated
felony” under § 1326(b)(2) or U.S. Sentencing Guidelines Manual
(“U.S.S.G.”) § 2L1.2(b)(1)(C) (Nov. 2002). Appellant also argues
that his sentence is invalid under Blakely v. Washington, 124 S.
Ct. 2531 (2004).
1. Aggravated Felony
We review whether the conviction is an aggravated felony de
novo. United States v. Santos, 363 F.3d 19, 22 (1st Cir. 2004).
Subsection 1326(b)(2) provides that an alien removed “subsequent to
a conviction for a commission of an aggravated felony” shall be
fined or imprisoned for not more than twenty years, up from two
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years for simple illegal re-entry under § 1326(a). The definition
of “aggravated felony” is found in 8 U.S.C. § 1101(a)(43)(F), which
states that the term includes “a crime of violence . . . for which
the term of imprisonment [is] at least one year.” The definition
of “term of imprisonment” in 8 U.S.C. § 1101(a)(48)(B) is “the
period of incarceration . . . ordered by a court of law regardless
of any suspension of the imposition or execution of that . . .
sentence in whole or in part.”
The Sentencing Guideline applicable to unlawfully re-entering
or remaining in the United States under § 1326 provides that the
base offense level of eight is increased by eight levels for a
defendant who was deported after a “conviction for an aggravated
felony.” U.S.S.G. § 2L1.2(b)(1)(C). Application Note 2 states:
“For purposes of subsection (b)(1)(C) ‘aggravated felony’ has the
meaning given that term in 8 U.S.C. § 1101(a)(43), without regard
to the date of conviction of the aggravated felony.”
Appellant argues that the statutory definition of “aggravated
felony” is ambiguous because it encompasses crimes traditionally
regarded as misdemeanors, as well as felonies, and urges that under
the rule of lenity, he should not have been subject to the enhanced
penalty provision in § 1326(b)(2).1 He cites two dissenting
1
“Crime of violence,” as defined in 18 U.S.C. § 16(a),
includes an offense that has “as an element, the use, attempted
use, or threatened use of physical force against the person or
property of another.” Appellant does not dispute that the New
Hampshire assault misdemeanor falls within this definition.
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opinions to support his argument. See United States v. Pacheco,
225 F.3d 148, 158 (2d Cir. 2000) (Straub, J., dissenting) (“To
include misdemeanors within the definition of ‘aggravated felony’
turns the plain meaning of the word ‘aggravated’ entirely on its
head, since in addition to not being felonies in the first place,
misdemeanors are conventionally understood as being less severe
than felonies, as well.”), cert. denied, 533 U.S. 904 (2001);
United States v. Gonzales-Vela, 276 F.3d 763, 768 (6th Cir. 2001)
(Merritt, J., dissenting) (same).
We agree with the phalanx of circuit courts that have
rejected similar challenges and held that the statutory definition
of the term “aggravated felony” in § 1101(a)(43) is a term of art
that includes within its ambit certain misdemeanors under state law
that carry a sentence of at least one year. See Pacheco, 225 F.3d
at 154-55; United States v. Graham, 169 F.3d 787, 792 (3d Cir.
1999); Wireko v. Reno, 211 F.3d 833 (4th Cir. 2000); United States
v. Urias-Escobar, 281 F.3d 165, 167-68 (5th Cir. 2002); United
States v. Gonzales-Vela, 276 F.3d 763, 767-68 (6th Cir. 2001);
Guerrero-Perez v. INS, 242 F.3d 727, 734-37 (7th Cir. 2001);
United States v. Gonzalez-Tamariz, 310 F.3d 1168, 1170-71 (9th Cir.
2002); United States v. Saenz-Mendoza, 287 F.3d 1011, 1014-15 (10th
Cir. 2002); United States v. Christopher, 239 F.3d 1191, 1193-94
(11th Cir. 2001).
Under this caselaw, the pivotal question is not whether a
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crime is labeled a felony or a misdemeanor under state law, or
whether it has conventionally been considered a misdemeanor, but
whether the crime meets the explicit definition of “aggravated
felony” under § 1101(a)(43)(F). The rule of lenity does not apply
simply because a statute requires interpretation. See United
States v. Ahlers, 305 F.3d 54, 62 (1st Cir. 2002) (“It is only when
no reasonably clear meaning can be gleaned from the text of a
statute, leaving courts to guess at what Congress intended, that
the rule of lenity comes into play.”). Because Appellant was
sentenced to “at least one year” for the assault, he was convicted
of an “aggravated felony” as defined under federal law.
Appellant similarly argues that U.S.S.G. § 2L1.2(b)(1)(C) is
ambiguous because his simple assault conviction meets the
definition of a misdemeanor in Application Note 3(A), which defines
“misdemeanor” as “any federal, state or local offense punishable by
a term of imprisonment of one year or less,” and does not fall
within the definition of “felony” in Application Note 1(B)(iv),
which defines “felony” as “any federal, state, or local offense
punishable by a term exceeding one year.” That argument is
unpersuasive in light of Application Note 2, which specifically
defines “aggravated felony” in U.S.S.G. § 2L1.2(b)(1)(C)
equivalently with 8 U.S.C. § 1101(a)(43). Accord Saenz-Mendoza,
287 F.3d at 1013-14; cf. United States v. Simpson, 319 F.3d 81, 85-
87 (2d Cir. 2002) (discussing 8 U.S.C. § 1101(a)(43)(B)).
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Some courts have suggested that it is nonsensical for a single
one-year sentence involving a crime of violence to be treated as an
aggravated felony, bringing an eight-level increase, whereas three
one-year misdemeanors that are crimes of violence could entail only
a four-level increase under U.S.S.G. § 2L1.2(b)(1)(E). See United
States v. Ponce-Casalez, 212 F. Supp. 2d 43, 45-47 (D.R.I. 2003);
Pacheco, 225 F.3d at 150 (Straub, J., dissenting) (“Moreover, if
‘aggravated felony’ is read to include misdemeanor crimes of
violence, the incongruous result would follow that the commission
of three or more misdemeanors involving ‘crimes against the person’
is punishable by a prison term up to 10 years, while the commission
of just one misdemeanor involving a ‘crime of violence’ is
punishable by a prison term up to 20 years.”). Nonetheless, §
2L1.2(b)(1) instructs the court to “Apply the Greatest” sentencing
enhancement. Thus, the crime must be treated as an aggravated
felony subject to an eight-level increase. See Simpson, 319 F.3d
at 87.
2. Blakely
The day before oral argument, Appellant filed a letter
pursuant to Local Rule 28(j) arguing that the sentence was unlawful
on the ground that Blakely v. Washington, 124 S. Ct. 2531 (2004),
and Apprendi v. New Jersey, 530 U.S. 466 (2000), undermine the
Supreme Court’s ruling in Almendarez-Torres v. United States, 523
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U.S. 224, 235 (1998), which held that the prior “aggravated felony”
language of 8 U.S.C. § 1326(b)(2) refers to a sentencing
enhancement, not to an element of the offense. The letter also
advocated that Appellant should be resentenced because post-
Blakely, the Federal Guidelines are merely advisory.
Since Appellant’s argument depends upon a decision that did
not exist at the time of briefing, a 28(j) letter is a perfectly
appropriate avenue by which to present it –- such letters are
intended to provide the court with new authority. See Freeman v.
Barnhart, 274 F.3d 606, 609 (1st Cir. 2001) (accepting Rule 28(j)
letter making new arguments where they could not have been made
before and the relevant statute permitted court to order new
evidence taken at any time). The Government does not argue that
the issue was raised in an untimely manner and has filed a Rule
28(j) letter in response.
The parties agree that the standard is plain error. Under the
plain error test, an appellant “‘bears the burden of demonstrating
(1) an error, (2) that is plain, (3) that affects substantial
rights (i.e., the error was not harmless), and (4) that seriously
undermines the fairness, integrity, and public reputation of
judicial proceedings.’” United States v. McCormack, 371 F.3d 22,
29 (1st Cir. 2004) (quoting United States v. Fazal-Ur-Raheman-
Fazal, 355 F.3d 40, 48 (1st Cir. 2004)).
In Apprendi, the Supreme Court stated: “Other than the fact of
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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.” 530 U.S. at 490
(emphasis added). Blakely did not disturb the distinction between
“the fact of a prior conviction” and other facts that “increase the
penalty for a crime beyond a prescribed maximum.” Blakely, 124 S.
Ct. at 2536 (quoting and applying the Apprendi rule stated above).
Accordingly, there was no error in the trial judge’s consideration
of the prior conviction. Even if there were such an error,
Appellant has failed to demonstrate that it affected substantial
rights of his because there is no dispute that he had a conviction.
See United States v. Cotton, 535 U.S. 625, 632 (2002) (in a review
of an Apprendi error, holding that the “third inquiry usually means
that the error must have affected the outcome of the district
court’s proceedings”).
Appellant has also launched a broadside attack on the validity
of the Sentencing Guidelines under the Sixth Amendment. Even if
the Sentencing Guidelines as a whole are ultimately declared
invalid, we must decide whether any error in applying them was
“plain.” Compare United States v. Duncan, __ F.3d __, 2004 WL
1838020, at *3-*5 (11th Cir. August 18, 2004) (holding that any
Blakely error was not “plain” under the plain error standard of
review) with United States v. Ameline, 376 F.3d 967, 978 (9th Cir.
2004) (holding the contrary).
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In determining whether the error was plain, the Supreme Court
has explained: “Where the law at the time of trial was settled and
clearly contrary to the law at the time of appeal[,] it is enough
that an error be ‘plain’ at the time of appellate consideration.”
Johnson v. United States, 520 U.S. 461, 468 (1997). The question
of the continuing validity of the Sentencing Guidelines is an issue
that has roiled the federal courts, and split circuits. See, e.g.,
United States v. Booker, 375 F.3d 508 (7th Cir. 2004) (Posner, J.)
(holding the Guidelines unconstitutional) (Easterbrook, J.,
dissenting), cert. granted, ___ S. Ct. ___, 2004 WL 1713654; United
States v. Hammoud, ___ F.3d ___, 2004 WL 2005622 (4th Cir. Sept. 8,
2004) (en banc) (upholding the Guidelines) (Wilkinson, J., Shedd,
J., Widener, J., concurring; Motz, J., Michael, J., Gregory, J.,
dissenting); United States v. Koch, ___ F.3d ___, 2004 WL 1899930
(6th Cir. Aug. 26, 2004) (en banc) (upholding the Guidelines)
(Martin, J., Daughtrey, J., Moore, J., Cole, J., Clay, J.,
dissenting). Whatever the outcome, the answer is neither plain nor
obvious at the time of this appeal.
Because the trial judge’s sentence was consistent with
precedent, and the current law is unsettled, we conclude that there
is no plain error.
Affirmed.
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