United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS April 3, 2003
FOR THE FIFTH CIRCUIT
____________________ Charles R. Fulbruge III
Clerk
02-20392
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JUAN JOSE DIAZ-DIAZ,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
_________________________________________________________________
Before GARWOOD, SMITH, and BARKSDALE, Circuit Judges.
RHESA HAWKINS BARKSDALE, Circuit Judge:
Juan Jose Diaz-Diaz contests a 16-level sentencing
enhancement. Pursuant to a guilty plea, he was convicted for
illegal presence in the United States in September 2000, following
deportation after having been convicted of an aggravated felony.
See 8 U.S.C. § 1326(a) and (b)(2). The enhancement, not objected
to at sentencing in 2002, was under the then-in-effect 2001 version
of Sentencing Guidelines § 2L1.2(b)(1)(A)(iii)(enhancement for “a
firearms offense”). Primarily at issue is whether, in applying
that version, the district court committed a plain error violation
of the Ex Post Facto Clause, U.S. CONST. art. I, § 10, cl. 1.
AFFIRMED.
I.
Diaz, a citizen of Honduras, was convicted in Texas state
court in 1997 for possession of a prohibited weapon — a short-
barrel firearm — in violation of TEX. PENAL CODE § 46.05. Diaz was
deported in 1998.
In September 2000, the INS discovered Diaz in a Texas jail; he
had been arrested for forgery of a government instrument. Diaz had
not received permission to return to the United States. In October
2001, Diaz was charged with being illegally present in the United
States. See 8 U.S.C. § 1326(a) and (b)(2). That November, he
pleaded guilty to the charge.
In April 2002, the district court, applying the then-in-effect
2001 version of the guidelines, determined, pursuant to Guidelines
§ 2L1.2(b)(1)(A)(iii), that Diaz’ base offense level should be
increased by 16 because of his prior conviction for “a firearms
offense”. Diaz did not object to the enhancement. Following an
acceptance of responsibility reduction, the guidelines range was 57
to 71 months. Diaz was sentenced, inter alia, to a 57-month prison
term.
II.
Diaz contends: (1) the enhancement violated the Ex Post Facto
Clause; and (2) the “felony” and “aggravated felony” provisions of
8 U.S.C. § 1326(b)(1) and (2) are unconstitutional. For the first
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issue, there was no plain error; the second is presented only to
preserve it for possible Supreme Court review.
A.
“A sentencing court must apply the version of the sentencing
guidelines effective at the time of sentencing unless application
of that version would violate the Ex Post Facto Clause of the
Constitution.” United States v. Kimler, 167 F.3d 889, 893 (5th
Cir. 1999). Such a violation occurs when application of a current
guideline “results in a more onerous penalty” than would
application of a guideline in effect at the time of the offense.
Id. Accordingly, in claiming an ex post facto violation, Diaz
maintains he should have been sentenced under the 2000, rather than
the 2001, version of the guidelines, based on his claim that, under
the former, he would not have been subject to the enhancement.
The Presentence Investigation Report (PSR), using the 2001
version, recommended the enhancement pursuant to §
2L1.2(b)(1)(A)(iii) (“a firearms offense”). The PSR based this
recommendation on the following: “The prohibited firearm possessed
by [Diaz] was a short barreled shotgun and is the type described in
26 U.S.C. § 5845(a)”. (Emphasis added.) (The “described in”
language is discussed infra in part II.A.2., concerning an
alternate basis urged by the Government for there being no ex post
facto violation.)
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During sentencing, Diaz’ attorney did not object to the
enhancement. To the contrary, he agreed that Diaz’ prior firearms
conviction “certainly is a 16-level enhancement with the
categorical approach [used by the 2001 version for ‘a firearms
offense’]. All firearm offenders ... automatically [receive a] 16-
level enhancement”.
As Diaz concedes on appeal, because he failed to object to the
enhancement, including failing to raise in district court the ex
post facto claim belatedly presented now, his claim is reviewed
only for plain error. E.g., United States v. Calverley, 37 F.3d
160, 162 (5th Cir. 1994) (en banc), cert. denied, 513 U.S. 1196
(1995). Under this standard, we will reverse a district court’s
decision only if there was a “clear” or “obvious” error that
affected a defendant’s substantial rights. E.g., United States v.
Olano, 507 U.S. 725, 732-34 (1993). Even then, we have discretion;
generally, we will reverse only if the error “seriously affects the
fairness, integrity, or public reputation of judicial proceedings”.
Id. at 732 (citations omitted).
For the 2001 version of § 2L1.2 in effect at the time of
sentencing, Diaz is subject to the enhancement. Therefore, our ex
post facto analysis keys on whether Diaz would have been subject to
the same enhancement under the 2000 version, which was in effect at
the time of his offense.
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The applicable guideline under the 2001 version is §
2L1.2(b)(1)(A)(iii) (enhancement for “a firearms offense”). Under
the 2000 version, the applicable guideline is § 2L1.2(b)(1)(A); a
16-level enhancement was appropriate when the prior conviction was
an “aggravated felony”, as defined in 8 U.S.C. § 1101(a)(43).
U.S.S.G. § 2L1.2, cmt. n.1 (2000). The Government maintains short-
barrel firearm possession qualifies as such an “aggravated felony”
in either of two ways under 8 U.S.C. § 1101(a)(43): (1) under
subsection (F), as a “crime of violence”; and (2) under subsection
(E)(iii), as an offense “described in” 26 U.S.C. § 5861.
Of course, because Diaz did not object to the enhancement
under the 2001 version discussed in the PSR, the district court did
not conduct the ex post facto analysis in which we must now engage,
including whether Diaz would have received the same enhancement
under the 2000 version. Restated, Diaz’ failure to object obviated
the district court’s engaging in an analysis of the 2000 version;
that version was never mentioned to it. The question, for our
extremely narrow plain error analysis, is whether the district
court committed, inter alia, a “clear” or “obvious” error in
applying the 2001 guidelines.
Concomitantly, the Government was called upon, for the first
time on appeal, to present bases for upholding that application,
including demonstrating Diaz would have received the same
enhancement under the 2000 version. In so doing, it referenced,
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inter alia, subsection (E)(iii) of 8 U.S.C. § 1101(a)(43), as
incorporated by the 2000 version. Post oral argument, the parties
were permitted to submit supplemental briefs on that subsection.
As discussed infra, that subsection is the basis for there being no
plain error.
1.
One basis for a 16-level enhancement for an “aggravated
felony” pursuant to the 2000 version of § 2L1.2(b)(1)(A) is
subsection (F) of the incorporated 8 U.S.C. § 1101(a)(43): “a
crime of violence (as defined in [18 U.S.C. §] 16 ...) for which
the term of imprisonment [is] at least one year”. The Government
claims Diaz’ firearm conviction was such a “crime of violence”
under § 16(b) (“any other offense that is a felony and that, by its
nature, involves a substantial risk that physical force against the
person or property of another may be used in the course of
committing the offense” (emphasis added)).
United States v. Chapa-Garza, 243 F.3d 921 (5th Cir. 2001),
established the framework for determining whether an offense is a
§ 16(b) “crime of violence”. First, a categorical approach is
employed — “whether a particular defined offense, in the abstract,
is a crime of violence under ... § 16(b)”. Id. at 924. Second,
the offense, “in the abstract”, must present “the substantial
likelihood that the offender will intentionally employ force
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against the person or property of another in order to effectuate
the commission of the offense”. Id. at 927 (emphasis added).
Pursuant to the Chapa-Garza framework, United States v.
Hernandez-Neave, 291 F.3d 296, 299 (5th Cir. 2001), held the Texas
offense of unlawfully carrying a firearm on premises licensed to
sell alcoholic beverages, TEX. PENAL CODE § 46.02, was not a § 16(b)
crime of violence:
In the case of unlawfully carrying a firearm
onto premises licensed for the sale of
alcoholic beverages, physical force against
the person or property of another need not be
used to complete the crime. The crime is
completed by simply stepping over a threshold
while carrying such a weapon.
(Emphasis added.)
Similarly, the Texas statute under which Diaz was convicted
requires only that a defendant “knowingly possess[], manufacture[],
transport[], repair[], or sell[] ... a short-barrel firearm”. TEX.
PENAL CODE § 46.05. As in Hernandez-Neave, “physical force against
the person or property of another need not be used to complete
[that] crime”. 291 F.3d at 299. Instead, it is complete upon,
inter alia, mere knowing possession of the weapon.
Nevertheless, the Government relies upon United States v.
Rivas-Palacios, 244 F.3d 396, 398 (5th Cir. 2001), which held
possession of a sawed-off shotgun was a § 16(b) “crime of
violence”. Rivas-Palacios, rendered only eight days after Chapa-
Garza, failed to apply its framework. In this regard, Hernandez-
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Neave noted: “[T]o the extent that Rivas-Palacios conflicts with
our holding ... it also conflicts with Chapa-Garza. When panel
opinions appear to conflict, we are bound to follow the earlier
opinion”. 291 F.3d at 300 (internal quotations omitted).
Consequently, Rivas-Palacios does not preclude our holding that
possession of a short-barrel firearm is not a § 16(b) “crime of
violence”.
2.
Another basis for a 16-level enhancement for an “aggravated
felony” pursuant to the 2000 version of § 2L1.2(b)(1)(A) is
subsection (E)(iii) of the incorporated 8 U.S.C. § 1101(a)(43): an
“offense described in ... [26 U.S.C. §] 5861 ... (relating to
firearms offenses)”. Section 5861(d) provides: “It shall be
unlawful for any person ... to receive or possess a firearm which
is not registered to him in the National Firearms Registration and
Transfer Record”. A “firearm” is defined as, inter alia, “a
shotgun having a barrel ... less than 18 inches in length”. 26
U.S.C. § 5845(a)(1).
In this regard, the unobjected-to PSR stated: “The prohibited
firearm possessed by [Diaz] was a short-barreled shotgun and is the
type described in 26 U.S.C. § 5845(a)”, cited here in the preceding
paragraph. (Emphasis added.) Section 5845(a) was referenced in
the PSR because, for subsection (A)(iii) of the 2001 version of §
2L1.2(b)(1), the operative “a firearms offense” is defined, in
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part, as: “An offense under federal, state, or local law that
prohibits the possession of a firearm described in 26 U.S.C. §
5845(a)”. Cmt. 1(B)(v)(II) (emphasis added).
Similarly, TEX. PENAL CODE § 46.05(a)(3) prohibits knowing
possession of a short-barrel firearm, defined as, inter alia, “a
shotgun with a barrel length less than 18 inches”. TEX. PENAL CODE
§ 46.01(10). It is a defense to a violation of § 46.05 that the
“possession was pursuant to registration pursuant to the National
Firearms Act [28 U.S.C. § 5801 et seq.]”. TEX. PENAL CODE §
46.05(c). (There is nothing in the record concerning whether Diaz
raised this defense against his 1997 conviction under the Texas
statute.)
Accordingly, 26 U.S.C. § 5861 is almost identical to TEX. PENAL
CODE § 46.05. Each proscribes possession of the same type of
firearm. Each concerns possession of short-barrel firearms and
registration vel non under the National Firearms Act; registration
is a defense under Texas law, while non-registration is an element
of the federal offense. (Also, the Texas statute incorporates
other defenses to prosecution, not present in the federal statute.
TEX. PENAL CODE § 46.05(b)(conduct incidental to performance of
governmental duty) and (d)(dealing in collectibles).)
Despite subsection (E)(iii)’s classification of “offense[s]
described in [26 U.S.C. §] 5861” as “aggravated felonies”, Diaz
contends state statutes similar to § 5861 should not be construed
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as such felonies because Congress specifically cited a federal
statute (§ 5861) instead of using a more generic term. Diaz offers
no authority for this proposition. Moreover, subsection (E)(iii)
encapsulates any offense that is sufficiently similar to § 5861 as
to be “described” therein.
Diaz maintains United States v. Villanueva-Gaxiola, 119 F.
Supp. 2d 1185 (D. Kan. 2000), offers a basis for holding § 46.05 is
not “an offense described in” § 5861. Villanueva-Gaxiola held the
California offense of unlawful possession of a short-barreled
shotgun was not an offense “described in” § 5861. 119 F. Supp.2d
at 1188. The California statute neither included non-registration
as an element of the offense nor allowed a registration defense.
Villanueva-Gaxiola’s holding was premised on its concluding that
the essence of the state and federal statutes
are not the same. 26 U.S.C. § 5861 hinges on
the fact that a person has not registered his
... short-barreled shotgun, not on the fact
that a person simply possesses a short-
barreled shotgun. One could thus comply with
the [federal] statute by registering his or
her short-barreled shotgun ... but could still
violate [the] California [statute] by simply
possessing the short-barreled shotgun (whether
registered or not).
Id. at 1189.
Unlike the California statute, TEX. PENAL CODE § 46.05 does not
differ from the federal statute in any meaningful way. The Texas
statute does incorporate national registration as a defense. Along
this line, Diaz contends that, because registration is a defense to
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the Texas statute, rather than an element of the offense, the Texas
statute is not “described in” § 5861. He maintains that, because
a defendant is obligated to produce evidence with regard to
registration, a defendant may be convicted of the Texas offense
while still complying, through federal registration, with § 5861.
Therefore, according to Diaz, a conviction under the Texas statute
does not “hinge” on a defendant’s registration vel non. Id. at
1189.
Had the district court at least been called upon at sentencing
to consider the question at hand, it certainly would not have been
a “clear” or “obvious” error for it to conclude that the Texas
offense was “described in” § 5861. In the light of subsection
(E)(iii) of 8 U.S.C. § 1101(a)(43), as used in the 2000 version, we
conclude that application of the 2001, instead of the 2000, version
was not plain error. Restated, concerning an ex post facto
violation vel non, there was no plain error.
B.
In contending 8 U.S.C. § 1326(b)(1) and (2) are
unconstitutional in the light of Apprendi v. New Jersey, 530 U.S.
466 (2000), Diaz concedes this issue is foreclosed by Almendarez-
Torres v. United States, 523 U.S. 224 (1998). He raises it only to
preserve it for possible Supreme Court review.
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III.
For the foregoing reasons, the judgment is
AFFIRMED.
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