U.S. v. Moreno-Cisneros, 01-30421.

• Decision Date: 31 January 2003
• Docket Number: No. 01-30421.,01-30421.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Carlos MORENO-CISNEROS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

319 F.3d 456

UNITED STATES of America, Plaintiff-Appellee, v. Carlos MORENO-CISNEROS, Defendant-Appellant.

No. 01-30421.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted November 6, 2002.

Filed January 31, 2003.

Robert M. Stone, Medford, OR, for the appellant.

Robert G. Thomson, Assistant United States Attorney, Medford, OR, for the appellee.

Appeal from the United States District Court for the District of Oregon; Michael R. Hogan, District Judge, Presiding. D.C. No. CR-01-30045-HO.

Before: REAVLEY,^* KOZINSKI, and W. FLETCHER, Circuit Judges.

Opinion by Judge REAVLEY; Dissent by Judge WILLIAM A. FLETCHER.

REAVLEY, Circuit Judge.

The issue presented in this appeal is whether, under U.S.S.G. § 2L1.2(b)(1), as amended Nov. 1, 2001, the length of the "sentence imposed" for a prior state conviction includes the prison sentence the defendant received after his probation was revoked. We agree with the district court that it does and accordingly affirm.

In 2001 appellant Carlos Moreno-Cisneros was convicted after a guilty plea of illegal reentry under 8 U.S.C. § 1326. He was subject to an enhanced sentence under 8 U.S.C. § 1326(b)(2), which provides that the maximum sentence for illegal reentry increases from two to twenty years if the alien's "removal was subsequent to a conviction for commission of an aggravated felony." In 1988 Moreno-Cisneros had been convicted in California state court of possession for sale of a controlled substance, and he was subsequently deported. He does not dispute that his prior drug conviction was an aggravated felony, as 8 U.S.C. § 1101(a)(43)(B) defines an aggravated felony to include a drug trafficking offense.

Moreno-Cisneros does, however, dispute the district court's application of Sentencing Guideline § 2L1.2(b)(1)(A)(i), which provides for a 16-level increase in the offense level if the defendant was deported after a conviction for a drug trafficking felony "for which the sentence imposed exceeded 13 months." U.S.S.G. § 2L1.2(b)(1)(A)(i).

Moreno-Cisneros disputes that the "sentence imposed" for the state court conviction exceeded thirteen months. After his state court conviction, he had received a three-year suspended sentence, with three years probation and credit for jail time served of 226 days. In 1989, however, his probation was revoked and he was sentenced to three years in prison. He served just over thirteen months of this sentence in prison before being released.

Application note 1(A)(iv) to the Guideline 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." We follow the application notes unless they are inconsistent with the text of the Guidelines. United States v. Bachiero, 969 F.2d 733, 734 (9th Cir. 1992). The narrow question presented is whether, notwithstanding application note 1(A)(iv), the three-year prison sentence imposed by the state court after Moreno-Cisneros's probation was revoked is included in the calculation of the length of the "sentence imposed" under § 2L1.2(b)(1)(A)(i). Stated another way, the issue is whether the "sentence imposed" is limited to the prison sentence originally imposed, or includes the additional incarceration ordered because of the revocation of the probation that was originally imposed.

We are persuaded that the prison sentence imposed after revocation of probation should be included in calculating the length of the sentence imposed for the prior offense. First, the Guideline and application note quoted above do not limit the sentence imposed to the sentence as it was originally imposed, and we can see no reason to infer such a limitation from the wording of the provisions. Moreover, we can discern no basis for treating an original sentence of over thirteen months incarceration as more serious than a sentence of over thirteen months incarceration that consists of the original sentence plus the result of the revocation of probation. A defendant who does not abide by the terms of his probation has demonstrated that he should not have been given probation in the first place.

Further, analogous provisions of the Guidelines argue in favor of including the sentence imposed after revocation of probation in the calculation of the length of the "sentence imposed" under § 2L1.2(b)(1). Guideline § 4A1.1, which determines criminal history category points, provides that three points are added if the prior sentence of imprisonment exceeded thirteen months, and that two points are added if the prior sentence of imprisonment was at least sixty days. U.S.S.G. § 4A1.1(a)-(b). Guideline § 4A1.2(b)(2) provides that "[i]f 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)(2). However, § 4A1.2(k)(1) provides: "In the case of a prior revocation of probation ... add the original term of imprisonment to any term of imprisonment imposed upon revocation." U.S.S.G. § 4A1.2(k)(1).

Guideline § 4A1.2 is analogous to § 2L1.2(b)(1). Like § 4A1.2(b)(2), § 2L1.2 application note 1(A)(iv) excludes suspended sentences from the calculation of a term of imprisonment. Section 4A1.2(k)(1) clarifies that this exclusion does not apply to probation that is revoked. Moreno-Cisneros argues that the absence of a provision similar to § 4A1.2(k)(1) in § 2L1.2 implies the Commission intended to adopt the opposite rule for the latter section. We find the contrary inference more plausible in this case. Section 4A1.2 is a broadly applicable section of the Guidelines. It is not surprising that it contains many definitions clarifying the term "sentence of imprisonment." See, e.g., U.S.S.G. § 4A1.2(g)-(i) (treatment of military, foreign and tribal convictions); id. § 4A1.2(j) (treatment of expunged convictions); id. § 4A1.2(l) (treatment of convictions pending appeal). Section 2L1.2, like many other Guidelines sections, is a narrowly applicable provision dealing only with a particular offense. The fact that it does not define its terms to the same level of detail does not imply that the Commission intended definitions opposite to those it spelt out in § 4A1.2.

United States v. Jimenez, 258 F.3d 1120 (9th Cir.2001), cert. denied, 534 U.S. 1151, 122 S.Ct. 1115, 151 L.Ed.2d 1009 (2002), also supports our interpretation. In that case, the defendant received a sixteen-point increase in his sentence for illegal reentry under an earlier version of § 2L1.2(b)(1)(A), which applied if the defendant had been deported after a conviction for an "aggravated felony" as defined by 8 U.S.C. § 1101(a)(43). Under the statute, an aggravated felony includes a crime of violence for which the "term of imprisonment" is at least one year. 8 U.S.C. § 1101(a)(43)(F). The defendant in Jimenez had a prior conviction for spousal battery and had received probation. His probation was revoked, and he was sentenced to two years in prison and ultimately was incarcerated for thirteen months. Jimenez, 258 F.3d at 1123.

The defendant in Jimenez argued that "`the only sentence that matters for the purpose of evaluating the conviction for aggravated felony purposes is the one originally imposed by the court.'" Id. at 1125. We rejected this argument and held that the term of imprisonment included the term served after revocation of probation. "The fact that this term of imprisonment was not imposed until after he violated his probation is not legally significant." Id. Jimenez and the pending case both concern whether the period of incarceration after revocation of probation is included in the length of a prior sentence for purposes of deciding whether to impose an enhanced sentence for illegal reentry. Although Jimenez involved the definition of "term of imprisonment" under 8 U.S.C. § 1101(a)(43)(F), while the pending case involves the definition of "sentence imposed" under Guideline § 2L1.2(b)(1)(A)(i), we do not read that distinction to be consequential. Jimenez cited Alberto-Gonzalez v. INS, 215 F.3d 906, 909 (9th Cir.2000), for the proposition that the phrase "term of imprisonment" in the statute "refers to `the actual sentence imposed by the judge.'" Jimenez, 258 F.3d at 1125 (quoting Alberto-Gonzalez, 215 F.3d at 909). Jimenez drew no distinction between the terms, and we see no reason to do so.¹

AFFIRMED.

WILLIAM A. FLETCHER, Circuit Judge, dissenting:

The majority concludes that a previously suspended three-year prison sentence imposed because of a probation violation counts under U.S.S.G. § 2L1.2(b)(1) as part of a "sentence imposed" because of a state drug conviction. I respectfully dissent.

As a result of a drug trafficking conviction in 1988, Moreno-Cisneros received a three-year period of probation, a three-year suspended sentence, and a credit for the 266 days he had already served in prison. The sentencing document in the state court provided in relevant part:

It appearing to the Court that the ends of justice will be served by granting probation to the Defendant,

NOW, THEREFORE, IT IS ORDERED AND ADJUDGED that Defendant be and he/she is hereby (sentenced to Ca. Dept. of Corrections for the term of Three (3) years but that execution) (admitted to probation and that imposition) of sentence is hereby suspended for a period of (3) years from and after this date, such period of time to be considered the period of probation, subject to the following conditions:

....

... A violation of any of [the] terms [of your probation] will render you liable to the following penalt[y] ....

... If the Court has reason to believe that you have violated any of the terms of your probation, the Court may revoke and terminate your probation, and may after hearing, order that you serve any or all of the sentence heretofore suspended....

(Underlining added to indicate words inserted by the state court into blanks in the form;...