U.S. v. Chavez-Diaz

• Decision Date: 18 April 2006
• Docket Number: No. 05-2288.,05-2288.
• Citation: 444 F.3d 1223
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Saul CHAVEZ-DIAZ, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

444 F.3d 1223

UNITED STATES of America, Plaintiff-Appellee, v. Saul CHAVEZ-DIAZ, Defendant-Appellant.

No. 05-2288.

United States Court of Appeals, Tenth Circuit.

April 18, 2006.

Submitted on the briefs:^* Kari Converse, Albuquerque, NM, for Defendant-Appellant.

David C. Iglesias, United States Attorney, and Norman Cairns, Assistant United States Attorney, District of New Mexico, for Plaintiff-Appellee.

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

BRISCOE, Circuit Judge.

Saul Chavez-Diaz pleaded guilty to illegal reentry after deportation subsequent to an aggravated felony conviction, in violation of 8 U.S.C. § 1326(a) and (b)(2). He was sentenced to thirty months of imprisonment. Chavez-Diaz appeals his sentence, contending that the district court miscalculated his guideline range and that his sentence is unreasonable because mitigating circumstances warranted a lower sentence. We conclude that while we do not have jurisdiction to review the district court's discretionary decision to deny a downward departure, we have jurisdiction post-Booker to review the sentence imposed for reasonableness. We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and affirm Chavez-Diaz's sentence.

I.

On March 17, 2005, United States Border Patrol agents arrested Saul Chavez-Diaz and seven other individuals who were suspected of illegally crossing the United States-Mexico border near Columbus, New Mexico. A criminal records check revealed that Chavez-Diaz had been previously deported following a 1995 conviction in Wyoming state court.

Chavez-Diaz pleaded guilty, without the benefit of a plea agreement, to one count of illegal reentry after deportation for an aggravated felony. The presentence report (PSR) recommended a total offense level of 21 and a criminal history category score of II, resulting in an advisory guideline range of 41 to 51 months. Specifically, the PSR calculated a base offense level of 8, U.S.S.G. § 2L1.2(a), added 16 levels because Chavez-Diaz's prior 1995 conviction constituted a drug trafficking offense for which the sentence imposed exceeded thirteen months, U.S.S.G. § 2L1.2(b)(1)(A)(i), and subtracted 3 levels for Chavez-Diaz's acceptance of responsibility, U.S.S.G. § 3E1.1. Further, Chavez-Diaz received three criminal history points based on his 1995 conviction. The PSR found nothing upon which to base a departure.¹

At sentencing, the district court stated that it had reviewed the PSR, and that based on an offense level of 21 and a criminal history category I, Chavez-Diaz's sentencing range was 41 to 51 months. Vol. III at 22.² The district court, however, expressed concern over Chavez-Diaz's decision to decline a Rule 11(c)(1)(C) plea agreement, which would have resulted in an offense level of 19. Id. at 2, 19. The district court explained that it could not see a substantive difference between Chavez-Diaz's case and the district court's two previous sentencings that day, other than Chavez-Diaz's decision not to accept the 11(c)(1)(C) plea agreement. Id. at 21. The district court stated that to avoid unwarranted sentencing disparity, it needed to consider other sentences given to similarly situated defendants in the District of New Mexico. Id. at 22, 25. As a result, the district court sentenced Chavez-Diaz to thirty months of imprisonment. Id. at 22. The district court applied an offense level of 19 and a criminal history category I, consistent with one of the two previously sentenced defendants. Id.³ By sentencing Chavez-Diaz to thirty months, the district court sentenced below the guideline range of 41-51 months calculated in the PSR.

II.

A. Sentence Enhancement Under U.S.S.G. § 2L1.2

Chavez-Diaz argues that the district court miscalculated his offense level. Specifically, Chavez-Diaz asserts that his 1995 Wyoming conviction did not qualify him for the 16-level enhancement under U.S.S.G. § 2L1.2. By Chavez-Diaz's computation, the district court should have applied an ultimate adjusted offense level of 15.⁴

"Even after Booker, `when reviewing a district court's application of the Sentencing Guidelines, we review legal questions de novo and we review any factual findings for clear error, giving due deference to the district court's application of the guidelines to the facts.'" United States v. Wolfe, 435 F.3d 1289, 1295 (10th Cir.2006) (citations omitted).

Section U.S.S.G. § 2L1.2(a) recommends a base offense level of 8 for defendants unlawfully entering or remaining in the United States. The section recommends an increase of 16 levels for defendants previously deported after a felony drug trafficking conviction "for which the sentence imposed exceeded 13 months," U.S.S.G. § 2L1.2(b)(1)(A)(i), but only an increase of 12 levels for defendants previously deported after a felony drug trafficking conviction "for which the sentence imposed was 13 months or less," id. § 2L1.2(b)(1)(B).

Chavez-Diaz contends that the effect of his 1995 Wyoming sentence was a suspended sentence of less than thirteen months. He argues that the Wyoming state court imposed an alternative sentence: four to six years of imprisonment, or a suspended sentence if immigration officials deported him. Chavez-Diaz asserts that since he was deported soon after his sentencing, his sentence was effectively a suspended sentence. Thus, Chavez-Diaz argues that the district court should have used this alternative, suspended sentence, which was less than thirteen months of imprisonment, and increased his offense level by 12, not 16. The government responds that nothing in the state court record indicates that Chavez-Diaz received a suspended sentence. The government suggests that the "alternative" sentence imposed by the state court was an option available to INS, i.e., contingent on administrative action. Thus, the government asserts that deportation in Chavez-Diaz's case did not function as a suspended sentence.

As regards the 1995 Wyoming conviction, the record indicates that Chavez-Diaz pleaded guilty to two counts of delivery of a non-narcotic controlled substance. Supp. Vol. I, Exh. C, at 20. At the sentencing hearing, the state court inquired about the terms of Chavez-Diaz's plea agreement. Id. at 18. The state prosecutor responded that in exchange for Chavez-Diaz's guilty plea to two counts, the state would agree to dismiss the remaining four counts and recommend a sentence of four to six years on each count, to run concurrently, "with the same conditions as [Chavez-Diaz's] co-defendant as far as the understanding with the INS." Id. at 19. Earlier in the proceeding, Chavez-Diaz's co-defendant asked whether the court had been notified that INS would pick him up in 30 to 60 days. Id. at 11. The court informed Chavez-Diaz's co-defendant that it had been notified of the INS's procedures, but informed Chavez-Diaz's co-defendant that "there is no guarantee that INS will do that." Id. at 11. Similarly, the state court stressed to Chavez-Diaz that the court could not control whether the INS deported him or not. Id. at 20. The state court then sentenced Chavez-Diaz to a minimum of four years and a maximum of six years on each count, to run concurrently. Id. at 26. The state court's judgment stated:

IT IS FURTHER ORDERED that upon each count, the Defendant is placed in the care, custody and control of the Department of Corrections for physical placement at a State Penal Institution for a period of not less than four (4) years nor more than six (6) years. The Defendant's prison terms shall run concurrently with each other. The Defendant is given credit upon both the minimum and maximum sentences imposed herein, for forty-three (43) days already served in connection with this matter as of June 1, 1995.

IT IS FURTHER ORDERED that the Defendant is remanded to the custody of the Platte County Sheriff, for incarceration in the Platte County Jail until he is transported to the Wyoming State Penal Institution.

IT IS FURTHER ORDERED that if deemed appropriate by the Department of Immigration and Naturalization Services, the Defendant shall be immediately deported and returned to Mexico.

Vol. IV, Doc. 16, at Ex. A. Chavez-Diaz was deported to Mexico twenty-six days after the state court sentenced him. Aplt. Br. at 4 n. 2.

We agree with the government that the district court correctly determined that Chavez-Diaz's 1995 Wyoming sentence exceeded thirteen months for purposes of § 2L1.2. To interpret the term "sentence imposed" in § 2L1.2, the guideline sections adopt the meaning of the term "sentence of imprisonment" found in subsection (b) and Application Note 2 of § 4A1.2. U.S.S.G. § 2L1.2, application note 1(B)(vii). Section 4A1.2(b) provides:

(1) The term "sentence of imprisonment" means a sentence of incarceration and refers to the maximum sentence imposed.

(2) If part of a sentence of imprisonment was suspended, "sentence of imprisonment" refers only to the portion that was not suspended.

U.S.S.G. § 4A1.2(b).⁵ The Wyoming state court clearly imposed a maximum term of imprisonment of six years. The issue is whether part of that six-year term of imprisonment was suspended.

When determining the effect of a prior state court sentence for purposes of applying the United States Sentencing Guidelines, we must look to federal law. United States v. Garcia-Gomez, 380 F.3d 1167, 1171 (9th Cir.2004) (citations omitted). The guidelines do not provide an express definition of "suspended sentence." United States v. Gajdik, 292 F.3d 555, 558 (7th Cir.2002). But "[t]he defining characteristic of a `suspended sentence' under the United States Sentencing Guidelines is that it is suspended by a judicial officer, rather than an executive agency." Garcia-Gomez, 380 F.3d at 1172; see also Gajdik, 292 F.3d at 558 (observing that "under the now-repealed federal statute authorizing suspension of a sentence, 18 U.S.C. § 3651, only a court, not an executive agency could suspend a sentence") (citing United States v. Harris, 237 F.3d 585, 589 (6th...