U.S. v. Castro-Rocha, 02-1106.

• Decision Date: 25 March 2003
• Docket Number: No. 02-1106.,02-1106.
• Citation: 323 F.3d 846
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Santiago CASTRO-ROCHA, also known as Juan Blanco-Montisima, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

323 F.3d 846

UNITED STATES of America, Plaintiff-Appellee, v. Santiago CASTRO-ROCHA, also known as Juan Blanco-Montisima, Defendant-Appellant.

No. 02-1106.

United States Court of Appeals, Tenth Circuit.

March 25, 2003.

John W. Suthers, United States Attorney; Gregory Goldberg, Assistant United States Attorney, Denver, CO, for Plaintiff-Appellee.

Michael G. Katz, Federal Public Defender, Warren R. Williamson, Assistant Federal Public Defender, Madeline S. Cohen, Assistant Federal Public Defender, Denver, CO, for Defendant-Appellant.

Before HENRY, MURPHY, and O'BRIEN, Circuit Judges.

MURPHY, Circuit Judge.

After examining the briefs and appellate record, this three-judge panel determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R.App. P. 34(a)(2); 10th Cir. R. 34.1(G). Accordingly, on January 14, 2003, this court entered an order directing that the case be submitted without oral argument.

Santiago Castro-Rocha pleaded guilty to illegally reentering the United States after deportation in violation of 8 U.S.C. § 1326. The district court sentenced him to a fifteen-month prison term, followed by three years of supervised release. In calculating the appropriate sentence under the 2001 version of the United States Sentencing Guidelines ("U.S.S.G."), the district court increased Castro-Rocha's offense level by eight pursuant to U.S.S.G. § 2L1.2(b)(1)(C). Over a defense objection, the district court concluded that Castro-Rocha was subject to the 2001 version of § 2L1.2(b)(1)(C) because his prior Texas state drug conviction constituted an "aggravated felony." Castro-Rocha appeals. This court exercises jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a) and affirms.¹

The facts relevant to the disposition of this appeal are undisputed. Castro-Rocha is a citizen of the Republic of Mexico. In April of 2001, he was convicted in Texas state court of possession of a controlled substance and sentenced to a one-year term of imprisonment (suspended), two years probation, and a $1500 fine. The conviction for simple possession amounted to a felony under Texas law. Castro-Rocha was deported to Mexico in July of 2001.

In October of 2001, Castro-Rocha was found in Colorado. He had not obtained the express consent of the Attorney General to reapply for admission into the United States. That same month, he was charged in a one-count indictment with illegally reentering the United States after a prior deportation in violation of 8 U.S.C. § 1326. Castro-Rocha pleaded guilty to reentering the United States in violation of § 1326 in exchange for the government's promise to recommend that he be sentenced at the bottom of the applicable sentencing guideline range.

The United States Probation Office prepared a presentence report ("PSR") which concluded that Castro-Rocha's offense level was thirteen. In making this calculation, the PSR set Castro-Rocha's base offense level at eight pursuant to U.S.S.G. § 2L1.2(a). The PSR then increased his offense level by eight levels, concluding that the Texas simple possession conviction constituted an "aggravated felony" for purposes of the 2001 version of U.S.S.G. § 2L1.2(b)(1)(C). The PSR then reduced the offense level by three for acceptance of responsibility pursuant to U.S.S.G. § 3E1.1. The resulting total offense level of thirteen, when coupled with Castro-Rocha's criminal history category of II, resulted in a sentencing range of fifteen to twenty-one months.

Castro-Rocha filed a single objection to the PSR. In his objection, he recognized that in United States v. Cabrera-Sosa, 81 F.3d 998, 999-1001 (10th Cir.1996), this court held that a state felony conviction for simple possession constituted an "aggravated felony" for purposes of the pre-2001 version of § 2L1.2. He asserted, however, that the amendments to § 2L1.2 adopted on November 1, 2001, required a reexamination of the question whether a state felony conviction for simple possession constituted an "aggravated felony" for purposes of § 2L1.2(b)(1)(C). The district court overruled Castro-Rocha's objection, concluding both that it was bound by Cabrera-Sosa and that it was not necessary to adopt the definition of "aggravated felony" advocated by Castro-Rocha in order to give effect to the November 1, 2001 amendment to § 2L1.2.

The sole question in this case is whether the district court erred in concluding that a state felony conviction for simple possession of a controlled substance is an "aggravated felony" for purposes of the 2001 version of U.S.S.G. § 2L1.2(b)(1)(C). The district court's interpretation of the sentencing guidelines is a legal question subject to de novo review. United States v. Holbert, 285 F.3d 1257, 1259 (10th Cir.2002).

Prior to November 1, 2001, the effective date of the amendments at issue in this case, § 2L1.2(b) provided as follows:

(1) If the defendant previously was deported after a criminal conviction, or if the defendant unlawfully remained in the United States following a removal order issued after a criminal conviction, increase [the base offense level] as follows (if more than one applies, use the greater):

(A) If the conviction was for an aggravated felony, increase by 16 levels.

(B) If the conviction was for (i) any other felony, or (ii) three or more misdemeanor crimes of violence or misdemeanor controlled substance offenses, increase by 4 levels.

U.S.S.G. § 2L1.2(b) (2000). In Cabrera-Sosa, this court concluded that a state felony conviction for simple possession constituted an "aggravated felony" for purposes of the sixteen-level enhancement set out in § 2L1.2(b). We reached this conclusion by first noting that the application notes to § 2L1.2(b) specifically incorporated the definition of "aggravated felony" currently set out in 8 U.S.C. § 1101(a)(43). See Cabrera-Sosa, 81 F.3d at 999-1000. Section 1101(a)(43), in turn, defines "aggravated felony" as, inter alia, "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)." See Cabrera-Sosa, 81 F.3d at 1000 (quoting 8 U.S.C. § 1101(a)(43)(B)). As to the further incorporation of 18 U.S.C. § 924(c), this court indicated as follows:

Under section 924(c)(2), the relevant statute, "the term `drug trafficking crime' means any felony punishable under the Controlled Substances Act (21 U.S.C. [§] 801 et seq.), the Controlled Substances Import and Export Act (21 U.S.C. § 951 et seq.), or the Maritime Drug Law Enforcement Act (46 U.S.C.App. § 1901 et seq.)." 18 U.S.C. § 924(c)(2). "For a drug offense to come within this statute, and, in turn, to meet the definition of `aggravated felony,' it must meet two criteria: first, the offense must be punishable under one of these three enumerated statutes; and second, the offense must be a felony." United States v. Forbes, 16 F.3d 1294, 1301 (1st Cir.1994).

[Cabrera-Sosa's] 1990 conviction meets both criteria. First, possession of cocaine is clearly punishable under the Controlled Substances Act. See, e.g., 21 U.S.C. § 844(a). Second, it is undisputed that Mr. Cabrera-Sosa's 1990 conviction was a felony within the meaning of section 924(c)(2) even though it was a state conviction. The Controlled Substances Act defines a felony as "any Federal or State offense classified by applicable Federal or State Law as a felony." 21 U.S.C. § 802(13). Under New York law any criminal offense punishable by more than one year is a felony. N.Y. Penal Law § 10.00(5) (McKinney 1995). Since Mr. Cabrera-Sosa's sentence for his 1990 conviction was fifteen months, the offense was a felony under New York law. See Forbes, 16 F.3d at 1301 n. 10; Jenkins v. INS, 32 F.3d 11, 14 (2d Cir.1994).

Cabrera-Sosa, 81 F.3d at 1000 (footnote omitted).

It is absolutely clear, and Castro-Rocha does not contest, that under the interpretation of the term "aggravated felony" set out in Cabrera-Sosa, he would be subject to the eight-level increase set out in the new version of § 2L1.2(b)(1)(C). He asserts, however, that the amendments to § 2L1.2, effective November 1, 2001, altered the definition "aggravated felony" to exclude state simple possession felony convictions. The new version of § 2L1.2 sets out a graduated scale of sentencing enhancements based on the type of crime that preceded the previous deportation. It provides as follows:

(1) Apply the Greatest:

If the defendant previously was deported, or unlawfully remained in the United States, after —

(A) a conviction for a felony that is (i) a drug trafficking offense for which the sentence imposed exceeded 13 months; (ii) a crime of violence; (iii) a firearms offense; (iv) a child pornography offense; (v) a national security or terrorism offense; (vi) a human trafficking offense; or (vii) an alien smuggling offense committed for profit, increase by 16 levels;

(B) a conviction for a felony drug trafficking offense for which the sentence imposed was 13 months or less, increase by 12 levels;

(C) a conviction for an aggravated felony, increase by 8 levels;

(D) a conviction for any other felony, increase by 4 levels; or

(E) three or more convictions for misdemeanors that are crimes of violence or drug trafficking offenses, increase by 4 levels.

U.S.S.G. § 2L1.2(b)(1). The application notes to § 2L1.2 were also significantly altered to reflect the changes to the text of the guideline. In particular, the application notes contain a new definition of "drug trafficking offense" which does not include simple possession crimes. See U.S.S.G. § 2L1.2, app. n. 1(B)(iii). Nevertheless, the application notes continue to define the term aggravated felony by reference to 8 U.S.C. § 1101(a)(43). See U.S.S.G. § 2L1.2, app. n. 2 ("Application of Subsection (b)(1)(C). — For purposes of subsection (b)(1)(C), `aggravated felony' has the meaning given that term in 8 U.S.C. § 1101(a)(43), without regard to the date of...