United States v. Garza-Mendez, 12–13643.

• Decision Date: 15 November 2013
• Docket Number: No. 12–13643.,12–13643.
• Citation: 735 F.3d 1284
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Roberto GARZA–MENDEZ, Defendant–Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

735 F.3d 1284

UNITED STATES of America, Plaintiff–Appellee,

v.Roberto GARZA–MENDEZ, Defendant–Appellant.

No. 12–13643.

United States Court of Appeals, Eleventh Circuit.

Nov. 15, 2013.

Nichole Lillibridge, U.S. Attorney's Office, Sirce Elliott Owen, Lawrence R. Sommerfeld, Sally Yates, U.S. Attorney's Office. Atlanta, GA, for Plaintiff–Appellee.

Thomas L. Hawker, Stephanie A. Kearns, Federal Defender Program, Inc., Atlanta, GA, for Defendant–Appellant.

Appeal from the United States District Court for the Northern District of Georgia. D.C. Docket No. 1:12–cr–00070–WSD–RGV–1.

Before MARTIN and FAY, Circuit Judges, and GOLDBERG,^* Judge.

FAY, Circuit Judge:

Roberto Garza–Mendez, a Mexican citizen who pled guilty to unlawful reentry into the United States by an aggravated felon, in violation of 8 U.S.C. § 1326(a) and (b)(2), appeals the calculation of his sentence. The district judge applied an 8–level increase under U.S.S.G. § 2L1.2(b)(1)(C) (2011) for Garza–Mendez's Georgia-family-violence-battery conviction, declined to give him a variance or departure based on cultural assimilation, and imposed a 3–year term of supervised release, including a special condition requiring Garza–Mendez to report his address from Mexico after he is deported. We affirm.

I. BACKGROUND

Garza–Mendez's deportation from the United States resulted from his guilty plea and conviction under a Georgia-family-violence-battery statute for striking his girlfriend, the mother of his three minor children, causing visible bodily injury. On August 30, 2007, he was sentenced to confinement for 12 months; the remainder of his sentence was probated after he had served 30 hours in prison. Garza–Mendez was deported from the United States to Mexico on January 25, 2011.

In February 2011, he illegally re-entered this country and subsequently was arrested for striking an unattended vehicle and driving without a driver's license on January 27, 2012. Following confinement in local custody for these offenses, Garza–Mendez was released to the custody of the Bureau of Immigration and Customs Enforcement on outstanding warrants for failure to appear and probation violation on February 7, 2012. He was transferred to the United States Marshals Service on March 9, 2012. A grand jury indicted him for illegal re-entry into the United States on March 6, 2012.

The only sentence calculation by the Probation Office in his Pre–Sentence Investigation Report to which Garza–Mendez objected was the addition of 8 levels under U.S.S.G. § 2L1.2(b)(1)(C) for his previous conviction of an aggravated felony, the family-violence battery.¹ He argued his family-violence-battery conviction was not an “aggravated felony” under U.S.S.G. § 2L1.2(b)(1)(C), because he was not sentenced to at least a year of imprisonment as required by 8 U.S.C. § 1101(a)(43)(F).

Following Garza–Mendez's guilty plea to the family-violence battery, Gwinnett County Judge Matthew Robins sentenced Garza–Mendez on August 30, 2007, to “12 months” of “confinement in the Gwinnett County Comprehensive Correctional Complex,” credited him “30 hours” for time served, permitted the remainder of the sentence to be served on probation, and fined him “$350.00.” R1–14 Ex. 1. Following his apprehension for illegal re-entry into the United States in January 2012, Garza–Mendez sought a clarification of his sentence. On April 17, 2012, Gwinnett County Judge Pamela D. Smith issued a clarification order:

Having reviewed the Court's August 30, 2007 sentence in the above-styled case, the Court finds that it is appropriate to clarify what sentence the Court imposed. The Court sentenced Defendant to twelve (12) months of probation with the first thirty (30) hours to be served in custody. The Court gave Defendant credit for thirty (30) hours that Defendant had already served. The Court did not sentence Defendant to twelve (12) months of incarceration.

R1–14 Ex. 2.

At his June 26, 2012, federal sentencing for illegal re-entry into the United States of a previously deported alien, Garza–Mendez argued the state-court clarification order showed he had not been sentenced to 12 months of imprisonment for his family-violence-battery crime. Consequently, he contended he should not have an 8–level increase under U.S.S.G. § 2L1.2(b)(1)(C) for a crime, where the sentence was not 12 months of confinement. The district judge denied this objection, denied his request for downward departure under U.S.S.G. § 2L1.2 cmt. n. 8 for cultural assimilation, and imposed a reporting requirement from Mexico as a special condition of his supervised release. He sentenced Garza–Mendez to the middle of the Sentencing Guidelines range: 20 months of imprisonment, 3 years of supervised release, and a $100 mandatory special assessment. R1–17 at 1–4. Following imposition of his sentence, Garza–Mendez objected to the application of U.S.S.G. § 2L1.2(b)(1)(C), the failure to depart for cultural assimilation, and the special condition of his supervised release requiring him to report from Mexico. He pursues these issues on appeal.

II. DISCUSSION

A. Application of U.S.S.G. § 2L1.2(b)(1)(C)

Under U.S.S.G. § 2L1.2(b)(1)(C), “[i]f the defendant previously was deported” and had “a conviction for an aggravated felony,” the sentencing judge must increase the sentence “by 8 levels.” Id. An aggravated felony is a crime of violence for which the term of imprisonment is at least one year. 8 U.S.C. § 1101(a)(43)(F). We have held “an aggravated felony is defined by the sentence actually imposed.” United States v. Guzman–Bera, 216 F.3d 1019, 1020 (11th Cir.2000) (per curiam); see United States v. Christopher, 239 F.3d 1191, 1193, 1194 (11th Cir.2001) (recognizing a misdemeanor crime of violence qualifies as an “aggravated felony” under the Sentencing Guidelines; “felony status is not an absolute requirement for the use of the ‘aggravated felony’ enhancement”). A term of imprisonment includes “the period of incarceration or confinement ordered by a court of law regardless of any suspension of the imposition or execution of that imprisonment or sentence in whole or in part.” 8 U.S.C. § 1101(a)(48)(B) (emphasis added); see Guzman–Bera, 216 F.3d at 1021 (“A reference to a term of imprisonment is deemed to include the period of incarceration regardless of any suspension of either the imposition or execution of that sentence.”).

On appeal, “Garza–Mendez does not contend that [his state] conviction is not a ‘crime of violence’ under 18 U.S.C. § 16”; instead, he argues that he was not sentenced to an imprisonment term of at least one year. Appellant's Br. at 13. He bases his argument on another Gwinnett County judge's clarification order stating he had not been sentenced to 12 months of incarceration. In overruling Garza–Mendez's objection at sentencing, the district judge found the clarification “[wa]s simply the judge's stating what actually she intended to happen, but it doesn't impact the actual imposition of the sentence that was imposed.” R3 at 150–51 (emphasis added). “We review questions of law with respect to the district court's application of the Sentencing Guidelines de novo.” United States v. Aguilar–Ortiz, 450 F.3d 1271, 1272 (11th Cir.2006).

There are three problems with the argument presented by Garza–Mendez concerningthe state-court judge's subsequent clarification order. First, the state judge, who issued the clarification order, was not the sentencing judge. Second, the state judge did nothing more than review Garza–Mendez's August 30, 2007, sentence to issue the clarification order. Third, the August 30, 2007, sentence could not be any clearer—Garza-Mendez was sentenced to “12 months” of “confinement,” despite the subsequent state judge's interpretation. See Appendix. This was the sentence imposed irrespective of any suspension of the confinement term. See8 U.S.C. § 1101(a)(48)(B). ²

Garza–Mendez did not challenge his 12–month–confinement sentence, when it was imposed in 2007. Five years later, his counsel requested a clarification from a different state-court judge in April 2012, prior to his June 26, 2012, federal sentencing for illegal re-entry into the United States. The substantial period between the imposition of Garza–Mendez's original sentence and the clarification of that sentence by a different state judge, strategically timed to precede and influence his federal sentence for illegal re-entry into the United States, presents an issue of first impression in our circuit.³ In precursoropinions, we have recognized “[w]ords in federal statutes reflect federal understandings, absent an explicit statement to the contrary”; we decided “the term of imprisonment described in § 1101(43) ... include[s] all parts of a sentence of imprisonment from which the sentencing court excuses the defendant, even if the court itself follows state-law usage and describes the excuse with a word other than ‘suspend.’ ” United States v. Ayala–Gomez, 255 F.3d 1314, 1319 (11th Cir.2001) (per curiam) (citing Dickerson v. New Banner Inst., Inc., 460 U.S. 103, 111–12, 103 S.Ct. 986, 74 L.Ed.2d 845 (1983)) (emphasis added); see Botes v. U.S. Att'y Gen., 436 Fed.Appx. 932, 934 (11th Cir.2011) (per curiam) (unpublished but recognized for persuasive value) (holding the Board of Immigration Appeals did not err in denying reconsideration of petitioner's motion to reopen his removal proceedings to reconsider whether his 12–month sentence, including 60 days of confinement and 10 months on probation, caused his imprisonment term to be less than one year). A portion of a sentence to be served on probation nevertheless returns the convicted defendant to prison if probation is violated.⁴

Because this is a federal case for unlawful re-entry into the United States following deportation and involves the interpretation of the Sentencing Guidelines and federal statutes, a federal judge is in a better position to interpret the state-sentence order regarding its effect on Garza–Mendez's federal sentence...