U.S. v. Carrasco-Mateo, 03-1553.

• Decision Date: 23 November 2004
• Docket Number: No. 03-1553.,03-1553.
• Citation: 389 F.3d 239
• Parties: UNITED STATES of America, Appellee, v. Manuel CARRASCO-MATEO, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

389 F.3d 239

UNITED STATES of America, Appellee, v. Manuel CARRASCO-MATEO, Defendant, Appellant.

No. 03-1553.

United States Court of Appeals, First Circuit.

Submitted October 15, 2004.

Decided November 23, 2004.

COPYRIGHT MATERIAL OMITTED

Alexander Zeno on brief for appellant.

H.S. Garcia, United States Attorney, Sonia I. Torres-Pabon and Nelson Perez-Sosa, Assistant United States Attorneys, on brief for appellee.

Before SELYA, Circuit Judge, COFFIN and CYR, Senior Circuit Judges.

SELYA, Circuit Judge.

In this appeal, defendant-appellant Manuel Carrasco-Mateo challenges a sentence imposed by the district court in consequence of his guilty plea to a charge of illegal reentry into the United States following an earlier deportation. See 8 U.S.C. § 1326(a). The appellant asseverates that the sentencing court erred in (i) boosting his base offense level by sixteen on account of a prior felony conviction; (ii) adding three points to his criminal history score on account of the same conviction; and (iii) increasing his criminal history score by two more points because he illegally reentered the country while on parole. These asseverations require us to deal with questions of first impression in this circuit as to the meaning and operation of certain provisions of the federal sentencing guidelines. Despite the ingenious nature of the appellant's challenges, we discern no error. Consequently, we affirm the sentence.

I. Background

Because this appeal follows a guilty plea, we derive the facts from the change-of-plea colloquy, the uncontested portions of the presentence investigation report (PSI Report), and the transcript of the disposition hearing. United States v. Brewster, 127 F.3d 22, 24 (1st Cir.1997); United States v. Dietz, 950 F.2d 50, 51 (1st Cir.1991).

The origins of this appeal can be traced to the appellant's felony drug conviction in a New York state court, for which he received an indeterminate prison sentence of one to three years on March 15, 2000. The appellant, a Dominican national, served less than a year of that sentence before being paroled into the custody of the Immigration and Naturalization Service (INS) to await deportation. See 8 U.S.C. § 1227(a)(2)(B)(i). The INS deported him to the Dominican Republic on April 25, 2001, notwithstanding that his parole term was to last until January 25, 2003.

We fast-forward to July 18, 2002. On that date, a Coast Guard search of a merchant vessel docked in San Juan uncovered twelve stowaways (including the appellant). After records revealed the previous deportation order, a federal grand jury indicted the appellant on a charge of violating 8 U.S.C. § 1326(a), a statute that makes it unlawful for a previously deported alien to reenter the United States without the express permission of the Attorney General.

The appellant eventually pleaded guilty to the charge. The offense of conviction carried a base offense level of eight. See USSG § 2L1.2(a).¹ The PSI Report recommended a sixteen-level enhancement because the appellant had previously been deported following a drug-trafficking conviction for which the sentence imposed exceeded thirteen months. See 8 U.S.C. § 1326(b)(2); USSG § 2L1.2(b)(1)(A)(i). This brought the appellant's adjusted offense level to 24. After a two-level discount for acceptance of responsibility, USSG § 3E1.1(a), the PSI Report settled upon a total offense level of 22.

Moving to the other furculum of the sentencing grid, the PSI Report recommended the assignment of three criminal history points on account of the appellant's prior conviction, id. § 4A1.1(a), and two additional points for illegal reentry while on parole, id. § 4A1.1(d). These recommendations produced a criminal history category (CHC) of III. Consequently, the PSI Report suggested that the district court employ a guideline sentencing range (GSR) of 51-63 months. See id. Ch.5, Pt.A (sentencing table).

The district court convened the disposition hearing on March 21, 2003. The appellant argued that he was entitled to a three-level reduction for acceptance of responsibility, see id. § 3E1.1(b), instead of the two-level reduction recommended in the PSI Report. The appellant also sought a downward departure, see id. § 5K2.0, based on a claim that he had committed the offense of conviction out of impoverished desperation.

The sentencing court agreed with the appellant that he had timely accepted responsibility (and that, therefore, a three-level reduction was in order). This reduction in the offense level yielded a GSR of 46-57 months, based on a total offense level of 21 and a CHC of III. See id. Ch.5, Pt.A (sentencing table). The court refused to depart downward and sentenced the appellant to a forty-six month incarcerative term. This appeal ensued.

II. Discussion

We review a district court's interpretation of the sentencing guidelines de novo and its factual findings for clear error. United States v. Mateo, 271 F.3d 11, 13 (1st Cir.2001); United States v. St. Cyr, 977 F.2d 698, 701 (1st Cir.1992). Here, however, the appellant advances on appeal an asseverational array composed wholly of objections that he neglected to raise before the district court. Because of this procedural default, our review is restricted to plain error. United States v. Vazquez-Molina, 389 F.3d 54, ___ (1st Cir.2004) [slip op. at 7]; United States v. Rodriguez, 311 F.3d 435, 437 (1st Cir.2002). That raises the bar appreciably. To achieve a finding of plain error, a defendant must show "(1) that an error occurred (2) which was clear or obvious and which not only (3) affected the defendant's substantial rights, but also (4) seriously impaired the fairness, integrity, or public reputation of judicial proceedings." United States v. Duarte, 246 F.3d 56, 60 (1st Cir.2001).

Against this backdrop, we turn to the appellant's three assignments of error.

A. Offense Level Enhancement

The sentencing guidelines set a base offense level of 8 for the crime of unlawfully entering or remaining in the United States. USSG § 2L1.2(a). The trial court is, however, directed to impose a sixteen-level enhancement "[i]f the defendant previously was deported ... after a conviction for a felony that is a drug trafficking offense for which the sentence imposed exceeded 13 months." Id. § 2L1.2(b)(1)(A)(i). A felony drug-trafficking conviction carrying a lesser sentence triggers only a twelve-level enhancement. Id. § 2L1.2(b)(1)(B).

In the case at hand, there is no dispute that the appellant's prior New York conviction was a drug-trafficking felony within the meaning of the applicable guidelines. The appellant argues, however, that the district court erred in treating it as a predicate for a sixteen-level enhancement. His first, and most loudly bruited, claim is that because the appellant served less than thirteen months on the prior conviction, he should have received only a twelve-level enhancement.

This claim relies heavily on Application Note 1 of the interpretive commentary to the sentencing guidelines. That note provides that "[i]f 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, cmt. n. 1(A)(iv). The appellant reasons that when New York paroled him into the custody of the INS less than one year into his incarcerative term, it simultaneously delivered him into this comment's welcoming embrace. He thus reads the phrase "sentence imposed" as referring only to the time actually spent in immurement. This reading does not withstand scrutiny.

Our quarrel is not with the text of Application Note 1. The Sentencing Commission's commentary, including the application notes, is binding on the courts as long as it does not conflict either with the sentencing guidelines themselves or with some statutory provision. See Stinson v. United States, 508 U.S. 36, 42-43, 113 S.Ct. 1913, 123 L.Ed.2d 598 (1993); United States v. Piper, 35 F.3d 611, 617 (1st Cir.1994); see also USSG § 1B1.7. The commentary to the sentencing guidelines must, however, be read in a straightforward, commonsense manner. The appellant's reading of Application Note 1 does not pass this screen. It distorts the plain meaning of the phrase "sentence imposed" and, in the bargain, runs counter to a growing consensus of case law. We explain briefly.

The phrase "sentence imposed" traditionally has meant exactly what the words imply: the punishment meted out by the sentencing court. An offender's early release cannot change the contours of the original sentence imposed after the fact. See Rodrigues v. INS, 994 F.2d 32, 34 (1st Cir.1993) (collecting cases).

Application Note 1 is perfectly consistent with this reasoning. The enumerated caveats contained in the note — probation, suspension, deferral, and stay — are all judicial options available at the moment of sentencing. See generally 18 U.S.C. § 3553. Parole is a different animal entirely, heavily influenced by post-sentencing events and administered by the executive rather than the judicial branch. See United States v. Frias, 338 F.3d 206, 212 (3d Cir.2003). Judges are not free to rewrite the sentencing guidelines and, in all events, the inclusion of parole by judicial fiat among the sentencing alternatives delineated in Application Note 1 would be anomalous. In our view, the absence of any mention of parole in the text of the note is a strong indication that the Sentencing Commission intended section 2L1.2's enhancements to reflect the original sentence pronounced, not the time actually served. See United States v. Mendez-Villa, 346 F.3d 568, 570 (5th Cir.2003) (noting that the plain language of Application Note 1 does not include parole); United States v. Rodriguez-Arreola, 313 F.3d 1064, 1066 (8th Cir.2002) (holding that "in this guideline, as in federal criminal law generally, the term `sentence imposed' means the sentence reflected in the criminal...