U.S. v. Hinojosa-Lopez, HINOJOSA-LOPE

• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)
• Writing for the Court: Before REYNALDO G. GARZA, KING and BENAVIDES; KING
• Citation: 130 F.3d 691
• Docket Number: No. 97-40183,D,HINOJOSA-LOPE
• Decision Date: 04 December 1997
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Luis Lauroefendant-Appellant.

Page 691

130 F.3d 691 UNITED STATES of America, Plaintiff-Appellee,
v.
Luis Lauro HINOJOSA-LOPEZ, Defendant-Appellant. No. 97-40183. United States Court of Appeals,
Fifth Circuit. Dec. 4, 1997.

Page 692

James Lee Turner, Paula Camille Offenhauser, Assistant U.S. Atty., Katherine L. Haden, Houston, TX, for Plaintiff-Appellee.

Jose E. Chapa, Jr., Roberto J. Yzaguirre, Yzaguirre & Chapa, McAllen, TX, for Defendant-Appellant.

Appeal from the United States District Court for the Southern District of Texas.

Before REYNALDO G. GARZA, KING and BENAVIDES, Circuit Judges.

KING, Circuit Judge:

Defendant-appellant Luis Lauro Hinojosa-Lopez appeals the sentence imposed upon him by the district court after he pled guilty to a one-count indictment charging him with unlawful presence in the United States following deportation. He claims that the district court incorrectly added sixteen points to his offense level on the basis of his prior state felony conviction for possession of marijuana. He also argues that the government failed to prove all of the necessary elements of the offense of which he was convicted. Finding no error, we affirm the district court's judgment of conviction and sentence.

I. FACTUAL & PROCEDURAL BACKGROUND

Luis Lauro Hinojosa-Lopez pled guilty to a one-count indictment charging him with unlawful presence in the United States following deportation pursuant to 8 U.S.C. § 1326(a), (b)(2) (1994). In exchange for Hinojosa-Lopez's guilty plea, the government agreed to recommend the maximum credit for acceptance of responsibility and a sentence at the low end of the applicable Sentencing Guidelines range. The Presentence Investigation Report ("PSR") indicated that Hinojosa-Lopez's previous convictions included a Texas conviction for "aggravated unlawful possession of marijuana," for which he had received a five-year prison sentence. Based on that Texas conviction, the PSR stated that Hinojosa-Lopez's base offense level of eight should be increased by four points because he had been deported after conviction of a felony. See U.S. SENTENCING GUIDELINES MANUAL § 2L1.2(a), (b)(1) (1995). The PSR also indicated that Hinojosa-Lopez was entitled to a two-point reduction for acceptance of responsibility, see id. § 3E1.1(a), resulting in a total offense level of ten, which, in combination with a criminal history category of III, produced a guidelines sentencing range of ten to sixteen months of imprisonment. Neither the government nor Hinojosa-Lopez objected to these findings.

At the initial sentencing hearing, the district court queried whether Hinojosa-Lopez's Texas conviction for aggravated possession of marijuana was an aggravated felony within the meaning of § 2L1.2(b)(2) of the Sentencing Guidelines. Section 2L1.2(b)(2) requires a sixteen-point increase in the offense level rather than the four-point increase mandated by § 2L1.2(b)(1). See id. § 2L1.2(b)(1), (2). As neither side was prepared to address this issue, the judge continued the sentencing

Page 693

hearing. When the sentencing hearing resumed, defense counsel confirmed that cases from every circuit that had considered the issue indicated that a sixteen-point increase in Hinojosa-Lopez's offense level pursuant to § 2L1.2(b)(2) was appropriate, but he nevertheless asked the court to sentence Hinojosa-Lopez according to the original PSR.

The district court found that Hinojosa-Lopez's aggravated possession of marijuana conviction qualified as an aggravated felony and applied the sixteen-point increase pursuant to § 2L1.2(b)(2) of the Sentencing Guidelines. The court then granted Hinojosa-Lopez a three-point decrease for acceptance of responsibility, resulting in a guidelines sentencing range of forty-six to fifty-seven months of imprisonment. However, because the court found that the PSR overstated Hinojosa-Lopez's criminal history, the court decreased the criminal history category to II and sentenced Hinojosa-Lopez to forty-two months of imprisonment.

II. DISCUSSION

A. Application of § 2L1.2(b)(2)

Hinojosa-Lopez argues that the district court erred in imposing a sixteen-point enhancement pursuant to § 2L1.2(b)(2) of the Sentencing Guidelines. He contends that the term "aggravated felony" as used in § 2L1.2(b)(2) does not include his Texas felony conviction for possession of marijuana because that crime is only a misdemeanor under federal law. See 21 U.S.C. § 844(a) (1994).

This court's review of a sentence imposed under the Sentencing Guidelines is limited to "a determination whether the sentence was imposed in violation of law, as a result of an incorrect application of the Sentencing Guidelines, or was outside of the applicable guideline range and was unreasonable." United States v. Matovsky, 935 F.2d 719, 721 (5th Cir.1991). We will reverse the trial court's findings of fact only if they are clearly erroneous, but "[w]e review a claim that the district court erred in applying U.S.S.G. § 2L1.2(b)(2) instead of § 2L1.2(b)(1) de novo." ¹ United...