U.S. v. Ruiz-Gea

• Decision Date: 19 August 2003
• Docket Number: No. 01-4242.,01-4242.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Isaac Bardo RUIZ-GEA, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

340 F.3d 1181

UNITED STATES of America, Plaintiff-Appellee, v. Isaac Bardo RUIZ-GEA, Defendant-Appellant.

No. 01-4242.

United States Court of Appeals, Tenth Circuit.

August 19, 2003.

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Scott Keith Wilson, Assistant Federal Public Defender (Steven B. Killpack, Federal Public Defender, with him on the briefs), Salt Lake City, UT, for Defendant-Appellant.

Diana Hagen, Assistant United States Attorney (Paul M. Warner, United States Attorney, and Laurie J. Sartorio, Assistant United States Attorney, on the brief), Salt Lake City, Utah, for Plaintiff-Appellee.

Before MURPHY, McWILLIAMS, and HARTZ, Circuit Judges.

HARTZ, Circuit Judge.

Defendant Isaac Bardo Ruiz-Gea appeals the sentence imposed following his guilty plea to illegal reentry of a deported alien, in violation of 8 U.S.C. § 1326. The principal issue on appeal is the proper interpretation of a provision in the United States Sentencing Guidelines relating to Defendant's offense. USSG § 2L1.2(b)(1)(A)(i), states: "If the defendant previously was deported, or unlawfully remained in the United States, after ... a conviction for a felony that is ... a drug-trafficking offense for which the sentence imposed exceeded 13 months ..., increase [the offense level] by 16 levels[.]" Defendant contends that this provision does not apply to him because he did not receive a sentence exceeding 13 months until his probation on a state drug-trafficking offense was revoked following his unlawful reentry. He also contends that the district court erred by adding one point to his criminal history score based on its finding that he committed the reentry offense less than two years after his release from confinement on the prior drug-trafficking conviction. See USSG § 4A1.1(e). We exercise jurisdiction under 18 U.S.C. § 3742(a) and affirm.

I. BACKGROUND

In 1997 Defendant, a Mexican citizen, was convicted by a Utah state court of attempted distribution of a controlled substance. He was sentenced on July 17, 1997, to imprisonment for 1 to 15 years, but the sentence was suspended, with the court ordering him to serve 90 days in jail and placing him on probation for 36 months. Shortly thereafter he was released to the custody of the Immigration and Naturalization Service (INS). The INS deported him to Mexico on July 30, 1997, and ordered him not to return.

At some point Defendant reentered the United States. He was arrested in Utah in August 1998 for possession of a controlled substance, and again in December 1998 for interfering with a lawful arrest. On June 20, 2000, the Utah state court revoked his probation for the 1997 controlled-substance offense and reimposed the original 1- to 15-year prison sentence. Defendant apparently remained in state custody for 13 months. He was then released to the custody of the United States for prosecution of the present case.

On April 11, 2001, Defendant was charged in a one-count indictment with having been unlawfully "present and ... found" in the United States following a deportation. Defendant pleaded guilty to the indictment, and on November 7, 2001, was sentenced to 57 months' imprisonment, to be followed by 36 months' supervised release. In calculating the sentence under the 2001 edition of the Sentencing Guidelines (which had become effective six days prior to sentencing in this case), the district court determined that the sentence imposed for Defendant's 1997 controlled-substance conviction exceeded 13 months. It therefore increased Defendant's base offense level by 16 levels as mandated by USSG § 2L1.2(b)(1)(A)(i). The court also added a criminal history point under USSG § 4A1.1(e), based on its finding that Defendant committed the offense of illegal reentry within two years of his release from prison on the 1997 conviction. Defendant now challenges those rulings.

II. DISCUSSION

A. Enhancement for prior conviction under § 2L1.2(b)(1)(A)(i)

Defendant contends that the district court erred in using his 1997 controlled-substance conviction to enhance his sentence under USSG § 2L1.2(b)(1)(A)(i). Section 2L1.2—entitled "Unlawfully Entering or Remaining in the United States"—instructs the district court to increase a defendant's base offense level by 16 levels "[i]f the defendant previously was deported, or unlawfully remained in the United States, after ... a conviction for a felony that is ... a drug trafficking offense for which the sentence imposed exceeded 13 months[.]" USSG § 2L1.2(b)(1)(A)(i). By contrast, when a defendant is deported after a drug-trafficking conviction "for which the sentence imposed was 13 months or less," the offense level is increased by 12 levels. Id. § 2L1.2(b)(1)(B). Application note 1(A)(iv) to the guideline states: "If all or any part of a sentence of imprisonment was probated, suspended, deferred, or stayed, `sentence imposed' refers only to the portion that was not probated, suspended, deferred, or stayed." Id. § 2L1.2, comment. (n.1(A)(iv)).

Defendant does not contest that his 1997 conviction was a "drug trafficking offense." But he argues that the "sentence imposed" for that conviction did not exceed 13 months because initially the 1- to 15-year prison term was suspended and he was ordered to serve only 90 days in jail. Although he acknowledges that the 1- to 15-year term was ultimately imposed when his probation was revoked in June 2000, he contends that this is irrelevant under the guideline. He appears to make two related arguments in support of this contention: (1) he construes application note 1(A)(iv) to say that suspended sentences that are ultimately imposed are not part of the "sentence imposed"; and (2) he contends that because the 1- to 15-year sentence was imposed following his deportation, he was not "deported ... after ... a conviction... for which the sentence imposed exceeded 13 months[.]" USSG § 2L1.2(b)(1)(A)(i) (emphasis added). Before addressing these arguments, we must determine our standard of review.

1. Standard of review

Ordinarily, "[t]he district court's interpretation of the sentencing guidelines is a legal question subject to de novo review." United States v. Castro-Rocha, 323 F.3d 846, 848-49 (10th Cir.2003). De novo review is appropriate, however, only if the issue was raised below. Defendant contends that he raised below the "functional equivalent" of his appellate arguments by arguing at sentencing that the length of the sentence imposed for the 1997 conviction warranted a downward departure under former application note 5 to § 2L1.2 of the 2000 edition of the Sentencing Guidelines. Aplt.'s Opening Br. at 5. That application note allowed downward adjustments from the presumptive offense level set forth in § 2L1.2 upon the satisfaction of certain conditions, including that the term of imprisonment imposed for the prior aggravated-felony conviction did not exceed one year. See USSG § 2L1.2, comment. (n.5) (2000). But Defendant was sentenced under the 2001 Guidelines—at the insistence of his trial counsel, who successfully sought postponement of Defendant's sentencing hearing until the 2001 Guidelines became effective—and those Guidelines contained a completely rewritten version of § 2L1.2 and accompanying commentary. Defendant made no argument addressed to the text of the 2001 version of § 2L1.2 and its new application note 1(A)(iv). In any event, the only statement below that resembles his contentions on appeal was his assertion, without argument, that his state sentence was for only 90 days; he made no argument regarding the timing of the probation revocation in relation to his deportation. His appellate arguments not having been raised below, our review is only for plain error. See United States v. Whitney, 229 F.3d 1296, 1308 (10th Cir.2000).

To establish plain error, Defendant "must show: (1) an error, (2) that is plain, which means clear or obvious under current law, and (3) that affect[s] substantial rights. If these three elements are satisfied, then we may exercise discretion to correct the error if it seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings." Id. (internal quotation marks and citations omitted; alterations in the original). Although "basing a sentence on the wrong guideline range constitutes a fundamental error affecting substantial rights ..., thereby satisfying the third prong of the plain error inquiry," id. at 1308-09 (internal quotation marks omitted), Defendant still must show that "if there was error, it was plain," id. at 1309. Our standard of review settled, we now turn to Defendant's arguments.

2. What was the "sentence imposed"?

According to Defendant, under § 2L1.2(b)(1)(A)(i) and its commentary the district court should have considered only the 90-day sentence originally imposed for his 1997 drug-trafficking conviction, ignoring the fact that the suspended sentence was subsequently imposed when he violated his probation. We disagree. Section 2L1.2(b)(1)(A)(i) speaks of a "conviction... for which the sentence imposed exceeded 13 months." The sentence imposed after revocation is imposed for the original conviction. As the Supreme Court recently explained: "A suspended sentence is a prison term imposed for the offense of conviction. Once the prison term is triggered, the defendant is incarcerated not for the probation violation, but for the underlying offense." Alabama v. Shelton, 535 U.S. 654, 662, 122 S.Ct. 1764, 152 L.Ed.2d 888 (2002).

Application note 1(A)(iv), on which Defendant relies, does not address how to treat an initially suspended sentence that is imposed upon the revocation of probation. It says only: "If all or any part of a sentence of imprisonment was probated, suspended, deferred, or stayed, `sentence imposed' refers only to the portion that was not probated, suspended, deferred, or stayed." USSG § 2L1.2, comment. (n.1(A)(iv)). Upon revocation of probation, however, Defendant's sentence was no longer "suspended."

We agree with the other...