U.S. v. Landeros-Arreola

• Citation: 260 F.3d 407
• Decision Date: 27 July 2001
• Docket Number: No. 00-50512,00-50512
• Parties: (5th Cir. 2001) UNITED STATES OF AMERICA, Plaintiff - Appellee, v. DAVID LANDEROS - ARREOLA, Defendant - Appellant
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 407

260 F.3d 407 (5th Cir. 2001)

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. DAVID LANDEROS - ARREOLA, Defendant - Appellant.

No. 00-50512

UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

July 27, 2001

Joseph H. Gay, Jr., Mark Randolph Stelmach (argued), Asst. U.S. Attys., San Antonio, TX, for Plaintiff-Appellee.

Henry Joseph Bemporad (argued), San Antonio, TX, for Defendant-Appellant.

Appeal from the United States District Court for the Western District of Texas Before POLITZ and EMILIO M. GARZA, Circuit Judges, and KAZEN^*, District Judge.

EMILIO M. GARZA, Circuit Judge:

David Landeros-Arreola ("Landeros") pleaded guilty to re-entering the United States illegally, in violation of 8 U.S.C. § 1326. At sentencing, the district court determined that Landeros's prior Colorado felony conviction for menacing constituted an aggravated felony, which subjected him to U.S.S.G. § 2L1.2's¹ penalty enhancement. On appeal, Landeros challenges this determination. Additionally, Landeros asserts that his sentence violated his due process rights because it exceeded the statutory maximum sentence, or, alternatively, that § 1326(b)(2) is an "unconstitutional sentencing enhancement."

The pre-sentence report treated Landeros's menacing conviction as an aggravated felony, increasing Landeros's base offense level by sixteen and adding three points to his criminal history. Landeros objected to the sentencing report's enhancement on the ground that his prior conviction was not an aggravated felony because his sentence, which was originally four years' imprisonment, was subsequently reduced to less than a year.² Landeros pointed out that after he completed a state "military bootcamp" for inmates, i.e., Colorado's Regimented Inmate Training Program ("RITP"), the state court issued the following order entitled "RECONSIDERATION OF SENTENCE":

THIS MATTER comes before the Court this date regarding reconsideration of sentence. The Defendant has completed the [RITP] and may now be released to immigration authorities. If Defendant is deported and returns to the United States legally within 12 months, upon his return to the United States he is to contact Morgan County, Colorado probation department and be placed on probation for a period of 18 months under the usual terms and conditions, including evaluation and placement on intensive Supervised Probation if acceptable.

According to Landeros, the order, which the court issued eight months after Landeros was sentenced and before he was deported, reduced his term of imprisonment to less than one year. Therefore, Landeros argued that his conviction did not constitute an aggravated felony, as defined in 8 U.S.C. § 1101(a)(43)(F),³ and his sentence could not be enhanced on that basis.

In an addendum to the pre-sentence report, the probation officer responded that Sentencing Guideline § 4A1.2(b) provides that the length of a prior sentence is determined by the term imposed, not the time served, and the term imposed on Landeros was four years. The officer also noted that a Colorado probation officer concurred in the proposed guideline calculations. Landeros again objected to these calculations.

At sentencing, the district court determined that the state court's order was similar to an early release, and did not constitute a change in the sentence. Although the district court noted that the Colorado court's "use of the word, reconsideration, clouds the issue somewhat," it found Landeros's position analogous to that of a federal prisoner who completes the Intensive Confinement Center Program ("ICC"), and is released to a "community confinement setting."

We review a district court's interpretation of "whether the sentencing guidelines apply to a prior conviction . . . de novo." United States v. Vasquez-Balandran, 76 F.3d 648, 649 (5th Cir. 1996). Our previous cases indicate that while we "examine[] [state law] for informational purposes, we are not constrained by a state's 'treatment of a felony conviction when we apply the federal-sentence enhancement provisions.'" See Vasquez-Balandran, 76 F.3d at 649 (5th Cir. 1996) (quoting United States v. Morales, 854 F.2d 65, 68 (5th Cir. 1988)). Thus, state law aids our analysis of the effect of the state court's sentence, but federal law determines whether the sentence constitutes a term of imprisonment for purposes of the aggravated felony enhancement.

Pursuant to § 2L1.2 of the Sentencing Guidelines, a defendant's base offense level is enhanced by sixteen for unlawfully entering the United States if the defendant was previously deported after a conviction for an aggravated felony. See § 2L1.2(b)(1)(A). 8 U.S.C. § 1101(a)(43)(F) defines an aggravated felony as "a crime of violence for which the term of imprisonment [is] at least one year." The phrase "term of imprisonment" refers to "the period of incarceration or confinement ordered by a court of law regardless of any suspension of the imposition or execution of that imprisonment."⁴ 8 U.S.C. § 1101(a)(48)(B); see United States v. Yanez-Huerta, 207 F.3d 746 (5th Cir. 2000) (suspended sentence counts for enhancement purposes); United States v. Vasquez-Balandran, 76 F.3d 648 (5th Cir. 1996) (including an assessed sentence within the definition of "term of imprisonment" as it was equivalent to a suspended sentence); see also United States v. Galvan-Rodriguez, 169 F.3d 217, 218 (5th Cir. 1999) (including a "sentence[] to five years deferred adjudication" as an aggravated felony under a prior version of § 2L1.2). However, the enhancement does not apply "when a defendant is directly sentenced to probation, with no mention of suspension of a term of imprisonment." United States v. Banda-Zamora, 178 F.3d 728, 730 (5th Cir. 1999); see Herrera-Solorzano, 114 F.3d at 50 (noting that a sentence to probation prior to a sentence to imprisonment does not constitute a term of imprisonment).

Landeros maintains that the Colorado court, pursuant to the RITP Act and Rule 35(b)⁵, reduced his sentence from imprisonment to probation, thereby removing his menacing conviction from the aggravated felony definition because his term of imprisonment was for less than a year. The government concedes that Landeros received a reduction in sentence, but contends that this reduction operated like a suspension of the execution of Landeros's sentence. We agree that Landeros's sentence was reduced. We, however, hold that it was reduced from imprisonment to probation, and no suspension of sentence occurred.

In Colorado, certain criminal defendants are eligible for placement in an RITP. The RITP Act, Colo. Rev. Stat. 17-27.7-104 (1994), is entitled "Acceptance and completion of the program by an offender--reconsideration of sentence." (emphasis added). See United States v. Marek, 238 F.3d 310, 321 (5th Cir. 2001) (title of a statute may be taken into consideration to resolve uncertainties); People v. Zapotocky, 869 P.2d 1234, 1238 (Colo. 1994) (same in Colorado). Under the RITP Act a defendant who successfully completes an RITP is "automatically referred to the sentencing court so that [he] may make a motion for [a] reduction of sentence pursuant to [R]ule 35b of the Colorado rules of criminal procedure." Colorado Rule 35(b), which is similar to a former version of Federal Rule of Criminal Procedure 35(b), "permits a court one opportunity to reconsider . . . a previously imposed sentence . . . and, in the exercise of sound judicial discretion, to re-sentence the defendant to a lesser term within the statutory limits." People v. Fuqua, 764 P.2d 56, 60 (Colo. 1988).

In the case sub judice, the Colorado court referred to the order in dispute as a "reconsideration of sentence," the same terminology as used in the title of the RITP Act. Additionally, the court noted that Landeros had completed an RITP program, which is the prerequisite for relief under the RITP Act. While the court did not specifically state that it was reducing Landeros's sentence to probation, this is the type of relief the RITP Act affords and the government concedes that a reduction occurred.⁶ See Colo. Rev. Stat. 17-27.7-104 (1993) (a court may "issue an order modifying the offender's sentence and placing the offender on probation or in a community corrections program"). Thus, pursuant to the RITP and Rule 35(b), the court reduced Landeros's sentence from a term of imprisonment to a less severe form of punishment, namely probation.⁷ See People v. Santana, 961 P.2d 498 499 (Colo. Ct. App. 1997) (finding that a modification of sentence from two-and-a-half-years' imprisonment to eight years' probation is a permissible reduction under Rule 35(b)).

The government asserts that this reduction was in effect a suspension of the execution of sentence, or, stated differently, Landeros's term of imprisonment was held in abeyance while he was on probation, but could be reinstated if Landeros breached a condition of his probation. We, however, believe that Landeros's sentence was reduced from imprisonment to probation. This conclusion is borne out by both Colorado and federal law. First, under Colorado law, the Colorado court could not have legally reduced Landeros sentence to probation and suspended his term of imprisonment. Colorado treats "probation as a form of sentence" distinct from imprisonment.⁸ People v. Turner, 644 P.2d 951, 953 (Colo. 1982); People v. Flenniken, 749 P.2d 395, 397 (Colo. 1988) (imprisonment and probation are sentencing alternatives); Colo. Rev. Stat. 16-11-101(1994). The Colorado Supreme Court has interpreted this to mean that courts are precluded from "impos[ing] a sentence of imprisonment, suspend[ing] that sentence, and then sentenc[ing] a defendant to a term of probation. A court may either grant probation or impose a prison term; it may not authorize both in the same instance." Montoya v. People, 864 P.2d 1093, 1095 n.4 (Colo. 1994) citing Flenniken, 749 P.2d 395 (Colo. 1988) (sentence to term of imprisonment, which is suspended and...