U.S.A v. Bustillos-pena

• Decision Date: 26 July 2010
• Docket Number: No. 09-20360.,09-20360.
• Citation: 612 F.3d 863
• Parties: UNITED STATES of America, Plaintiff-Appellee,v.Arturo BUSTILLOS-PENA, a/k/a Arturo Pena Bustillos, a/k/a Arturo Bustillos, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

612 F.3d 863

UNITED STATES of America, Plaintiff-Appellee,v.Arturo BUSTILLOS-PENA, a/k/a Arturo Pena Bustillos, a/k/a Arturo Bustillos, Defendant-Appellant.

No. 09-20360.

United States Court of Appeals, Fifth Circuit.

July 26, 2010.

Eileen K. Wilson, James Lee Turner, Asst. U.S. Atty., Houston, TX, for U.S.

Marjorie A. Meyers, Fed. Pub. Def., Laura Fletcher Leavitt, Asst. Fed. Pub. Def., Houston, TX, for Defendant-Appellant.

Appeal from the United States District Court for the Southern District of Texas.

Before GARWOOD, STEWART and CLEMENT, Circuit Judges.

GARWOOD, Circuit Judge:

On October 21, 2008, Arturo Bustillos-Peña (Bustillos) pleaded guilty to violating 8 U.S.C. § 1326 by being knowingly and unlawfully present in the United States on or about November 18, 2005 in Huntsville, Texas, after having been deported for an aggravated felony. At sentencing, over his objection, the district court enhanced his offense by sixteen levels on the ground that he had reentered the United States after being convicted of a felony that was a drug trafficking offense for which the sentence imposed exceeded thirteen months' imprisonment.

Bustillos contended at sentencing that this enhancement was improper, because at the time he was deported, and at the time he reentered the country, he had only received a probated sentence. It was not until after he had been present in the country illegally for two years that his probation was revoked and he was given a sentence of imprisonment that exceeded thirteen months. The district court overruled his objection, and he appeals his sentence.

We find that the provision of the November 2008 United States Sentencing Commission's Guidelines Manual (Sentencing Guidelines) under which Bustillos's sentence was enhanced was ambiguous and thus must be read in his favor. Accordingly, for the reasons discussed below, we vacate his sentence and remand his case for re-sentencing.

FACTS AND PROCEEDINGS BELOW

On August 30, 2001, Bustillos was convicted of delivering approximately fifty-six pounds of marijuana in the 275th Judicial District Court of Hidalgo County, Texas. He was sentenced to ten years' probation. On June 7, 2003, he was deported to Mexico.

In August 2003, Bustillos re-entered the United States illegally. Two years later, on August 31, 2005, he pled guilty to and was convicted in the 275th Judicial District court of Hidalgo County, Texas, of assaulting a public servant in June 2005. The Texas Department of Criminal Justice moved to revoke his probation on the marijuana offense, and the court revoked his probation and sentenced him to five years of imprisonment for the delivery of marijuana offense and two years for the assault, to run concurrently.

On November 18, 2005, an agent of United States Immigration and Customs Enforcement (ICE) discovered Bustillos in the Texas prison in Huntsville, Texas. Bustillos was subsequently indicted for being present in the United States illegally after having been deported for an aggravated felony, in violation of 8 U.S.C. § 1326(a) and (b)(2).¹ He pleaded guilty on October 21, 2008.

Bustillos's Pre-Sentence Investigation Report (PSR) recommended a sixteen-level increase in his offense level under § 2L1.2 of the Sentencing Guidelines,² because it found that he had been deported after a conviction for a drug trafficking offense for which the sentence imposed exceeded thirteen months. Bustillos objected to this enhancement on the ground that a prison sentence had not been imposed until after he had reentered the country. Thus, he argued, he had not been deported after a sentence was imposed that exceeded thirteen months.

The district court found that the temporal constraint of § 2L1.2 was satisfied, because it viewed Bustillos's sentence as relating back to his conviction, which had occurred before his deportation. Accordingly, the district court adopted the PSR's recommendation over Bustillos's objection and calculated his offense level to be twenty-one, after subtracting three points for acceptance of responsibility. It found that he had eleven criminal history points, giving him a criminal history category of V. After hearing his arguments for a downward departure, it sentenced him to sixty-nine months' imprisonment, one month below his thus calculated guideline range of seventy to eighty-seven months.

Bustillos timely filed a notice of appeal.

DISCUSSION

On appeal, Bustillos contends that the district court erred by applying the sixteen-level enhancement to his sentence. He asserts that the plain language of § 2L1.2 indicates that the sixteen-level enhancement only applies where a defendant was deported after the imposition of a prison sentence exceeding thirteen months. In the alternative, he argues that the guideline is ambiguous on the facts of his case and that the rule of lenity requires it to be interpreted in his favor.

I. Standard of Review

We review a district court's interpretation of the Sentencing Guidelines de novo. United States v. Velez-Alderete, 569 F.3d 541, 543 (5th Cir.2009) (per curiam); United States v. Calderon-Pena, 383 F.3d 254, 256 (5th Cir.2004) (en banc) (per curiam).

II. Applicability of the Enhancement

Bustillos argues that, in order for the sixteen-level enhancement to apply, a defendant must be given a prison sentence in excess of thirteen months before he is deported. The Government disagrees, arguing that when the sentence is imposed is irrelevant, so long as the conviction precedes the deportation. In its view, any sentence that is later imposed on that conviction after the defendant's illegal reentry automatically relates back to the date of the conviction and satisfies the temporal requirement of § 2L1.2.

The Government contends that its reading is compelled by our opinion in United States v. Compian-Torres, 320 F.3d 514 (5th Cir.2003). There, the defendant had received a probated sentence in 1994. Id. at 515. This sentence was revoked in 2000, and he was sentenced to two years' imprisonment. Id. He was deported after he received his sentence of imprisonment, and he thereafter reentered illegally. See id. at 514-15 & n. 1. He pleaded guilty to illegal reentry, and the district court applied the sixteen-level enhancement under § 2L1.2 at sentencing. Id. at 514-15. On appeal, he argued that this enhancement was improper, because at the time of his conviction, he had received only a probated sentence, not a sentence of imprisonment. Id. He argued that the sentence he had received upon the revocation of his probation could not be considered under § 2L1.2, because it was for a separate offense and because “sentence imposed” should be read “sentence originally imposed.” Id.

Reviewing the judgment of the district court, we found that “[u]nder both federal and state law a sentence imposed upon revocation of probation is treated as a sentence on the original underlying offense .... [N]ot ... a sanction for the new conduct ....” Id. at 516. We also found no basis for his claim that “sentence imposed” meant “sentence originally imposed.” Id. at 515. Accordingly, we rejected his argument and held that the term of imprisonment he had received at his revocation hearing was part of the sentence imposed on his conviction for the purposes of the guideline. Id. We concluded that the district court had applied the sixteen-level enhancement correctly. Id. at 517.

Our holding in Compian-Torres does not control this case. In Compian-Torres, the defendant's probation was revoked before he was deported. Thus, we had no reason to address whether or not the sixteen-level enhancement applies where the revocation sentence is imposed after a defendant's illegal reentry. Our determination in Compian-Torres that “sentence imposed” did not mean “sentence originally imposed” also has no effect on this case. Bustillos does not argue that we should imply “originally” into § 2L1.2. Nor does he contest that a revocation sentence is a sentence on the same conduct and conviction as the probated sentence it supersedes. Instead, he argues that, under the plain language of § 2L1.2, the sixteen-level enhancement cannot be applied unless the defendant received a prison sentence exceeding thirteen months before he was deported.

The government argues that the plain language of the enhancement only indicates that the drug trafficking conviction must precede the deportation of the defendant. It argues that when the sentence is imposed is irrelevant. It also asserts that this interpretation is supported by the commentary to § 2L1.2, which provides that:

“ ‘Sentence imposed’ has the meaning given the term ‘sentence of imprisonment’ in Application Note 2 and subsection (b) of § 4A1.2 (Definitions and Instructions for Computing Criminal History), without regard to the date of the conviction. The length of the sentence imposed includes any term of imprisonment given upon revocation of probation, parole, or supervised release.” USSG § 2L1.2, comment. (n.1).

Application Note 2 of § 4A1.2 states that “[t]o qualify as a sentence of imprisonment, the defendant must have actually served a period of imprisonment on such sentence ....” USSG § 4A1.2, comment. (n.2). Subsection (b) of § 4A1.2 provides:

“(b) Sentence of Imprisonment

(1) The term ‘sentence of imprisonment’ means a sentence of incarceration and refers to the maximum sentence imposed.

(2) If part of a sentence of imprisonment was suspended, ‘sentence of imprisonment’ refers only to the portion that was not suspended.”

USSG § 4A1.2(b) (emphasis in original).

The government's interpretation of § 2L1.2 has some support in the commentary's statement that “sentence imposed” is to be determined “without regard to the date of the conviction.” However, Bustillos argues that this statement is subservient to the enhancement's overarching requirement that a defendant have been deported “after” the imposition of the sentence.

Bustillos's interpretation is the most natural reading of § 2L1.2 and its commentary. The guideline...