U.S. v. Arellano-Torres

• Decision Date: 18 September 2002
• Docket Number: No. 01-10705.,01-10705.
• Citation: 303 F.3d 1173
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Miguel Angel ARELLANO-TORRES, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

303 F.3d 1173

UNITED STATES of America, Plaintiff-Appellee, v. Miguel Angel ARELLANO-TORRES, Defendant-Appellant.

No. 01-10705.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted July 12, 2002.

Filed September 18, 2002.

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Ronald C. Rachow, Assistant United States Attorney, Reno, NV, for the plaintiff-appellee.

Michael K. Powell, Assistant Federal Public Defender, Reno, NV, for the defendant-appellant.

Appeal from the United States District Court for the District of Nevada; Edward C. Reed, District Judge, Presiding. D.C. No. CR-01-00022-ECR.

Before: FISHER and PAEZ, Circuit Judges, and WHELAN, District Judge.^*

FISHER, Circuit Judge.

Miguel Arellano-Torres challenges his sentence for illegal reentry into the United States in violation of 8 U.S.C. § 1326. His appeal presents the question of whether his 1999 Nevada conviction for simple drug possession is an aggravated felony as defined by 8 U.S.C. § 1101(a)(43). We hold that it is and affirm the sentence. We also reject Arellano's contention that the district court erred in imposing a consecutive sentence.

FACTUAL & PROCEDURAL BACKGROUND

Three crimes are relevant to understanding Arellano's challenges to his sentence: Arellano's 1999 Nevada conviction for possession of a controlled substance, his 2000 Nevada conviction for drug trafficking and his 2001 federal conviction for illegal reentry into the United States.

In the fall of 1999, Nevada authorities arrested Arellano for possessing a controlled substance in violation of Nevada Revised Statutes ("NRS") 453.336. He was convicted and sentenced to 12 to 48 months custody in the Nevada State Prison. However, NRS 193.130(2)(e) required the state court immediately to suspend the term of imprisonment and impose probation; Arellano received a two-year term of probation. Following his state conviction, the INS deported Arellano, an illegal alien.

About one year later, in November 2000, Nevada state authorities again arrested Arellano, this time for violation of probation and other unspecified misdemeanor charges. Apparently this brought Arellano to the attention of the federal authorities: INS agents interviewed him on November 17, and he signed a sworn affidavit admitting that he had unlawfully reentered the United States on or about September 1, 2000. Just a few days after the interview on November 24, Reno police officers arrested Arellano for driving a stolen car with about nine grams of methamphetamine on the passenger side floor.

On November 28, a Nevada state court revoked Arellano's probation for the 1999 conviction and sentenced him to 12 to 48 months in the Nevada State Prison. While Arellano was serving this sentence, the United States indicted him in January 2001 for the offense at issue in this case — illegal reentry by a deported alien, in violation of 8 U.S.C. § 1326(a). He pled guilty to the federal offense on August 2, 2001.

A few days later, a Nevada state court sentenced Arellano in connection with his November 24, 2000 arrest. He pled guilty to trafficking in a controlled substance, a violation of NRS 453.3385(1), and the court sentenced him to 12 to 32 months in prison, to be served concurrently with the 12-to-48-month sentence that he was already serving for his 1999 conviction.

Arellano was finally sentenced for his federal illegal entry crime in November 2001. The probation office recommended an eight-level increase under § 2L1.2 of the United States Sentencing Guidelines (U.S.S.G.) because Arellano was deported after a conviction for "an aggravated felony." U.S.S.G. § 2L1.2 (Nov. 1, 2001).¹ The Presentence Report listed as the qualifying aggravated felony Arellano's 1999 state conviction for simple drug possession. The district court imposed the eight-level adjustment and sentenced Arellano to 24 months in federal prison, to run consecutively to his undischarged state sentence.

STANDARD OF REVIEW

We review de novo whether Arellano's prior conviction qualifies as an aggravated felony for purposes of § 2L1.2. United States v. Rivera-Sanchez, 247 F.3d 905, 907 (9th Cir.2001) (en banc). We also review de novo the district court's interpretation and application of the Sentencing Guidelines. United States v. Kim, 196 F.3d 1079, 1083 (9th Cir.1999).

ANALYSIS

I.

A defendant who reenters the country after being deported is punished more severely if he committed an "aggravated felony" before he was deported. 8 U.S.C. § 1326; U.S.S.G. § 2L1.2(b)(1)(C) (Nov. 1, 2001).² Arellano was deported after his 1999 state conviction for possession of a controlled substance, a violation of NRS 453.336. To determine whether that prior conviction constitutes an aggravated felony, we must first track the relevant statutory provisions.

Application Note 2 to § 2L1.2 states that "`aggravated felony' has the meaning given that term in 8 U.S.C. § 1101(a)(43), without regard to the date of conviction of the aggravated felony." U.S.S.G. § 2L1.2. Section 1101(a)(43) defines "aggravated felony" to include "illicit trafficking in a controlled substance (as defined in section 802 of Title 21), including a drug trafficking crime (as defined in section 924(c) of Title 18)." 8 U.S.C. § 1101(a)(43)(B). Therefore, to determine whether Arellano's prior conviction constitutes an aggravated felony, we are to consider whether it was (1) an "illicit trafficking" offense or (2) a "drug trafficking" offense as defined by § 924(c). Here, because we conclude that Arellano's prior conviction meets the second part of this definition, we need not address the first part.³

Section 924(c) defines "drug trafficking crime" to mean "any felony punishable under the Controlled Substances Act (21 U.S.C. § 801 et seq.)." 18 U.S.C. § 924(c)(2). Thus, a drug offense may qualify as an "aggravated felony" under 8 U.S.C. § 1101(a)(43)(B) "if it is (1) punishable under the federal Controlled Substances Act and (2) a felony." United States v. Robles-Rodriguez, 281 F.3d 900, 903 (9th Cir.2002) (citing United States v. Garcia-Olmedo, 112 F.3d 399, 400 (9th Cir.1997)); accord United States v. Zarate-Martinez, 133 F.3d 1194, 1200 (9th Cir.1998); Leyva-Licea v. INS, 187 F.3d 1147, 1150 (9th Cir.1996). Our central task is to determine whether NRS 453.336, the statute under which Arellano was convicted, meets this two-pronged federal definition of "aggravated felony."

To resolve the first prong — whether the offense is punishable under the Controlled Substances Act — our en banc opinion in United States v. Rivera-Sanchez, 247 F.3d 905 (9th Cir.2001), instructs us to determine whether the "full range of conduct encompassed by" the statute of conviction — NRS 453.336 — is punishable by the Controlled Substances Act. Id. at 907-09 (citing Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990)). If NRS 453.336 "reaches both conduct that would [be punishable under the Controlled Substances Act] and conduct that would not," we may examine "documentation or judicially noticeable facts that clearly establish that the conviction is a predicate conviction for enhancement purposes." Id. at 908. Arellano does not argue that NRS 453.336 is broader than the Controlled Substances Act, so for the purposes of this appeal we assume that the first prong of the aggravated felony definition is satisfied. Cf. 21 U.S.C. § 844(a) (punishing possession of a controlled substance).

The more difficult question is "whether the conviction[ ] [is a] `felon[y]' as that term is used in the federal statutes at issue here." Robles-Rodriguez, 281 F.3d at 903. We held in Robles-Rodriguez that "Congress intended the word `felony' to describe offenses punishable by more than one year's imprisonment under applicable state or federal law." 281 F.3d at 904 (relying in part on the definition of "felony drug offense" in 21 U.S.C. § 802(44) as "an offense that is punishable by imprisonment for more than one year under any law of the United States or of a State or foreign country"); see also 18 U.S.C. § 3559(a) (classifying offenses carrying more than one year of imprisonment as felonies and one year or less of imprisonment as misdemeanors); 18 U.S.C. § 924(e)(2)(B) (defining a "violent felony" as "any crime [satisfying other conditions] punishable by imprisonment for a term exceeding one year").

Under federal law, possession of an unspecified type and quantity of a controlled substance is punishable by up to one year in prison.⁴ 21 U.S.C. § 844(a) (emphasis added). If the defendant is a second- or third-offender, the maximum penalty is increased to two and three years, respectively. Id. Our recent en banc decision in United States v. Corona-Sanchez, 291 F.3d 1201 (9th Cir.2002), however, establishes that "we must consider the sentence available for the crime itself, without considering separate recidivist sentencing enhancements." Id. at 1209. Accordingly, we disregard § 844's penalties for repeat offenders. Because one year is the maximum term of imprisonment authorized for a first-time offender of § 844 (unless the violation involves more than three grams of cocaine base or any amount of flunitraze-pam), simple possession is not "punishable by more than one year's imprisonment under applicable ... federal law." Robles-Rodriguez, 281 F.3d at 904.

Possession of a controlled substance, however, may satisfy the second prong of the aggravated felony definition if it is "punishable by more than one year's imprisonment under applicable state ... law." Id. (emphasis added); see also United States v. Ibarra-Galindo, 206 F.3d 1337, 1339-40 (9th Cir.2000) (holding that crime that constitutes misdemeanor under federal law may nonetheless be considered aggravated felony if it qualifies as felony under state law), cert. denied, 531 U.S. 1102, 121 S.Ct. 837, 148 L.Ed.2d 718 (2001), overruled in part by Corona-Sanchez, 291 F.3d at 1210. That is the case here: under Nevada law, possession of a controlled substance is a category E felony,...