667 F.3d 1348 (10th Cir. 2012), 10-4224, United States v. Rosales-Garcia

Docket Nº:10-4224.
Citation:667 F.3d 1348
Opinion Judge:HOLLOWAY, Circuit Judge.
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Raul ROSALES-GARCIA, Defendant-Appellant.
Attorney:Benjamin McMurray, Assistant Federal Defender, Salt Lake City, UT, (Steven B. Killpack, Utah Federal Defender and Scott Keith Wilson, Assistant Federal Defender, with him on the brief), for the Appellant. Dave Backman, Assistant United States Attorney, Salt Lake City, UT, (Carlie Christensen, Uni...
Judge Panel:Before GORSUCH, HOLLOWAY, and McKAY, Circuit Judges. GORSUCH, Circuit Judge, dissenting:
Case Date:February 07, 2012
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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Page 1348

667 F.3d 1348 (10th Cir. 2012)

UNITED STATES of America, Plaintiff-Appellee,

v.

Raul ROSALES-GARCIA, Defendant-Appellant.

No. 10-4224.

United States Court of Appeals, Tenth Circuit.

February 7, 2012

Benjamin McMurray, Assistant Federal Defender, Salt Lake City, UT, (Steven B. Killpack, Utah Federal Defender and Scott Keith Wilson, Assistant Federal Defender, with him on the brief), for the Appellant.

Page 1349

Dave Backman, Assistant United States Attorney, Salt Lake City, UT, (Carlie Christensen, United States Attorney, with him on the brief), for the Appellee.

Before GORSUCH, HOLLOWAY, and McKAY, Circuit Judges.

HOLLOWAY, Circuit Judge.

Defendant-Appellant Raul Rosales-Garcia (Rosales) pled guilty to one count of illegal reentry in violation of 8 U.S.C. § 1326 and was sentenced to a term of imprisonment of 37 months. On appeal Mr. Rosales challenges his sentence, alleging that the district court incorrectly applied the Sentencing Guidelines. We agree. We REMAND to the district court for resentencing.

I

USSG § 2L1.2 is the Sentencing Guidelines provision applicable to defendants who illegally reenter the country in violation of 8 U.S.C. § 1326. The sentencing scheme embodied in § 2L1.2 imposes, via enhancements to the defendant's base offense level, more severe punishment for defendants who have committed serious prior crimes. A drug trafficking felony is enumerated as one such predicate offense. Depending on the length of the " sentence imposed" for the earlier drug trafficking felony, the defendant is subject to a 12- or 16-level enhancement on his illegal reentry sentence. If the " sentence imposed" for the earlier drug trafficking crime exceeded 13 months, the defendant is subject to the 16-level enhancement set out in § 2L1.2(b)(1)(A).

The sole question posed before us on appeal is whether the 16-level enhancement in USSG § 2L1.2(b)(1)(A) applies to a defendant whose sentence for an earlier drug trafficking felony was made longer than 13 months after the defendant was deported and committed the base offense of illegal reentry.

The relevant facts are undisputed and uncomplicated. Mr. Rosales was convicted of a state drug trafficking felony in 2008 and sentenced to 90 days' state imprisonment and 3 years of probation. Mr. Rosales was deported and then illegally reentered the country, violating the terms of his state probation and 8 U.S.C. § 1326. Federal law enforcement arrested Mr. Rosales shortly after he illegally reentered the country. Mr. Rosales's probation for the earlier state drug offense was revoked by a Utah state court as a result of his illegal reentry. Upon revocation of probation, Mr. Rosales was sentenced in state court to a term of imprisonment of 1 to 15 years on his prior state drug felony. After serving his state drug sentence, Mr. Rosales was released into federal custody and prosecuted in federal court for his illegal reentry. Mr. Rosales agreed to plead guilty to the federal charge as part of the District of Utah's fast-track program. Accordingly, the United States Probation Office prepared a Presentence Report (" PSR" ) before Mr. Rosales entered his guilty plea.

The PSR recommended that Mr. Rosales's base offense level be enhanced by 16 levels pursuant to USSG § 2L1.2(b)(1)(A). During his sentencing hearing and with the prosecution's permission, Mr. Rosales objected to the 16-level enhancement. The government alleged that Mr. Rosales's sentence upon revocation of his state probation constituted a prior drug trafficking felony for which the sentence imposed exceeded 13 months. Mr. Rosales contended that application of the 16-level enhancement did not comport with the Sentencing Guidelines for the sole reason that the " sentence imposed" did not exceed 13 months at the time he committed the base offense of illegal reentry.

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Mr. Rosales reserved the right to appeal application of the 16-level enhancement.

The district court rejected Mr. Rosales's argument and applied the 16-level enhancement as recommended in the PSR, resulting in an advisory Guidelines range of 37 to 46 months. The district judge ultimately sentenced Mr. Rosales to a prison term of 37 months. If the district court had applied the 12-level enhancement under § 2L1.2(b)(1)(B) instead of the 16-level enhancement, as Mr. Rosales says it should have, the Guidelines range would have been 24 to 30 months. On appeal, Mr. Rosales challenges the procedural reasonableness of his sentence, claiming that the district court improperly applied the Sentencing Guidelines.

II

A

The district court properly exercised jurisdiction over this case involving a crime against the United States pursuant to 18 U.S.C. § 3231. We have jurisdiction over this appeal of the district court's final sentencing decision pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a)(2).

We review de novo a district court's interpretation of the Sentencing Guidelines where the appellant's argument was properly preserved before the district court. United States v. Ford, 613 F.3d 1263, 1268 (10th Cir.2010).

In United States v. Ruiz-Gea, we confronted the precise issue that Mr. Rosales raises in his appeal in analogous factual circumstances, but there only reviewed for plain error because the defendant's objection to the 16-level enhancement was not preserved in the district court. United States v. Ruiz-Gea, 340 F.3d 1181, 1185 (10th Cir.2003). In Ruiz-Gea, we found no plain error in the district court's application of the 16-level enhancement, but explicitly noted the difficulty of the issue and invited future litigants to address the question after proper preservation before the district court. Id. at 1188.

Mr. Rosales preserved this issue in the district court proceedings, so here we must apply de novo review to the district court's application of the Guidelines. Because our opinion in Ruiz-Gea held that the defendant's argument was at least " plausible" and only resolved the case on the ground that the district court did not plainly err, in this case we must set out anew in reviewing § 2L1.2's application. See Ruiz-Gea, 340 F.3d at 1187.

B

The Guidelines provision at issue in this case, USSG § 2L1.2(b)(1), provides as follows:

" If the defendant previously was deported ... after (A) a conviction for a felony that is ... a drug trafficking offense for which the sentence imposed exceeded 13 months ..., increase [the base offense level] by 16 levels...."

Application Note 1(B)(vii) to § 2L1.2 defines a " sentence imposed" as including " any term of imprisonment given upon revocation of probation...." Additionally, the commentary makes clear that the length of the defendant's prior sentence is the maximum term of imprisonment for his prior offense. In other words, when the defendant's earlier sentence is for a range of years, the term of imprisonment is the maximum end of that range, for purposes of § 2L1.2.1 Thus, Mr. Rosales's ultimate

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state court sentence of 1 to 15 years is a 15-year prison sentence for purposes of § 2L1.2.

Mr. Rosales challenges the use of his 15 year sentence because it was not imposed until after he committed the base offense in 8 U.S.C. § 1326. In other words, Mr. Rosales asks us only to count the drug trafficking sentence that was imposed before he illegally reentered the country.

First and foremost, we carefully focus on the consequences of the Sentencing Commission's use of the word " after" in its provision. According to Mr. Rosales, this word choice means that all the elements of the § 2L1.2(b)(1) enhancements— conviction and imposition of sentence for a prior drug trafficking felony— must occur prior to the defendant's earlier deportation in order for the enhancement to be implicated. Under Mr. Rosales's view, the § 2L1.2(b)(1)(A) 16-level enhancement plainly does not apply to him since the 15 year sentence for his drug trafficking felony was not imposed before his illegal reentry.

The text of § 2L1.2(b)(1) makes repeated use of the past tense (" imposed" ; " exceeded" ) in referring to the predicate drug trafficking felony sentence serving as the basis for an enhancement, implying that the previous sentence must have been imposed before some date of reference.2 Because it is undisputed that the defendant's prior conviction must have occurred before deportation, we agree with Mr. Rosales that the most logical reading of § 2L1.2 is to refer to the date of deportation in evaluating whether the " sentence imposed" for the prior felony exceeded 13 months.

In other words, we conclude that the temporal requirement contained in the text of § 2L1.2 with regard to the defendant's conviction also applies to the imposition of his sentence for that conviction. This view is consistent with the interpretation of § 2L1.2 adopted by the Seventh Circuit in United States v. Lopez, 634 F.3d 948 (7th Cir.2011). Our ultimate disposition is consistent with results reached in three of our sibling circuits, though we recognize that one circuit has held to the contrary. Compare United States v. Bustillos-Pena, 612 F.3d 863, 869 (5th Cir.2010) (relying on the rule of lenity and concluding that " it is error to implement the sixteen-level enhancement" in analogous factual circumstances), United States v. Lopez, 634 F.3d 948, 950 (7th Cir.2011) (" We hold that [the defendant's] later sentence on probation revocation after his deportation and reentry should not count under section 2L1.2(b)(1)(A)(i)." ), and United States v. Guzman-Bera, 216 F.3d 1019, 1021 (11th Cir.2000) (applying an earlier version of § 2L1.2(b)(1)(A) when...

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