U.S. v. Munoz-Cerna, MUNOZ-CERN

• Decision Date: 07 February 1995
• Docket Number: D,No. 94-1202,MUNOZ-CERN,94-1202
• Citation: 47 F.3d 207
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Franciscoefendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 207

47 F.3d 207

UNITED STATES of America, Plaintiff-Appellee, v. Francisco MUNOZ-CERNA, Defendant-Appellant.

No. 94-1202.

United States Court of Appeals Seventh Circuit.

Argued Sept. 16, 1994.

Decided Feb. 7, 1995.

Stephen P. Sinnott, Asst. U.S. Atty., James Shapiro (argued), Office of U.S. Atty., Crim. Div., Barry Rand Elden, Asst. U.S. Atty., Crim. Receiving, Appellate Div., Chicago, IL, for plaintiff-appellee.

Stephen D. Berman, Arthur A. Liberty, II (argued), Azulay & Azulay, Chicago, IL, for defendant-appellant.

Before CUMMINGS, CUDAHY and RIPPLE, Circuit Judges.

RIPPLE, Circuit Judge.

Francisco Munoz-Cerna was convicted of illegally entering the United States after having been previously arrested and deported. See 8 U.S.C. Sec. 1326(b). Relying on U.S.S.G. Sec. 2L1.2(b)(2), the district court enhanced the applicable guideline range by 16 levels and imposed a sentence of five years of imprisonment. In this appeal, Mr. Munoz-Cerna challenges the lawfulness of that sentence. For the reasons set forth in the following opinion, we affirm the judgment of the district court.

I BACKGROUND

A. Facts

Although he has lived in Chicago almost all his life, Mr. Munoz-Cerna is a Mexican citizen. On July 30, 1987, he shot a man during the course of an attempted robbery. After his apprehension, he pled guilty, on March 21, 1990, to attempted armed robbery. The state court imposed a six-year sentence for the offense. On January 13, 1993, Mr. Munoz-Cerna was paroled; two weeks later, he was deported to Mexico. Soon afterward, he returned to the United States. On May 25 On June 23, 1993, a special grand jury indicted Mr. Munoz-Cerna for illegally reentering the United States after having been previously convicted and deported, in violation of 8 U.S.C. Sec. 1326. ¹ At the arraignment on June 28, 1993, the government filed a Notice of Enhancement of Sentence under 8 U.S.C. Sec. 1326(b)(2) for a 15-year maximum term of imprisonment on the ground that Mr. Munoz-Cerna's previous 1990 felony conviction for attempted armed robbery was classified as an "aggravated felony." On August 19, 1993, Mr. Munoz-Cerna pled guilty to the indictment. There was no plea agreement.

1993, Chicago law enforcement officers stopped him for a traffic violation. Mr. Munoz-Cerna was taken into custody, and it was discovered that he had been previously deported.

B. District Court Proceedings

The Pre-Sentence Investigation Report recommended that Mr. Munoz-Cerna's base offense level of 8 be enhanced 16 levels under the "specific offense characteristics" listed under U.S.S.G. Sec. 2L1.2(b). ² This section provides this enhancement for any "defendant previously ... deported after a conviction for an aggravated felony." U.S.S.G. Sec. 2L1.2(b)(2).

The government then filed an Amended Notice of Enhancement of Mr. Munoz-Cerna's sentence under 8 U.S.C. Sec. 1326(b)(1). In this document, and later in the actual sentencing proceeding, the government conceded that the statutory maximum term of imprisonment for Mr. Munoz-Cerna was five years. The state felony conviction for attempted armed robbery could not be considered an "aggravated felony" under the terms of the statute; only felonies committed after the effective date of the amendment, November 29, 1990, could be counted. ³ Mr. Munoz-Cerna committed the felony in 1987.

In sentencing Mr. Munoz-Cerna on January 19, 1994, the district court accepted the concession of the government and determined that the maximum term of imprisonment allowed under 8 U.S.C. Sec. 1326(b) was five years. The court then determined that this maximum sentence was permissible in this case because, although the predicate felony could not be considered "aggravated" for purposes of the statutory provision permitting a fifteen-year sentence, the sentencing

guideline provisions of Sec. 2L1.2(b)(2) provided an independent basis for a five-year sentence. The district court then determined that Mr. Munoz-Cerna's prior conviction did constitute an "aggravated felony" under the definition found in the Guidelines, and that the guideline provision was not dependent on the effective date of the statutory amendment.

II DISCUSSION

1.

We are asked to construe the language of a statute and a sentencing guideline. These are questions of law and, consequently, our review is de novo. United States v. Young, 34 F.3d 500, 504 (7th Cir.1994). Because the sentence at issue in this case requires an understanding of the relationship between a statutory provision and a guideline provision, we begin with an analysis of each.

(1) The Statute: 8 U.S.C. Sec. 1326

Congress enacted 8 U.S.C. Sec. 1326(b) in 1988 to increase significantly the criminal penalty for the reentry of an alien to the United States who was previously deported following a felony conviction. Pub.L. 100-690, Title VII, Sec. 7345, 102 Stat. 4471; see United States v. Maul-Valverde, 10 F.3d 544, 545 (8th Cir.1993). The new subsection provides maximum penalties of five years in prison if the deportation followed commission of a felony. 8 U.S.C. Sec. 1326(b)(1). If the deportation followed an aggravated felony, a maximum sentence of fifteen years can be imposed. 8 U.S.C. Sec. 1326(b)(2).

At the time of the enactment of Sec. 1326(b)(2), the term "aggravated felony," defined in 8 U.S.C. Sec. 1101(a)(43), did not include the offense of attempted armed robbery. Subsequently, the Congress amended the definition of "aggravated felony" in the Immigration Act of 1990 ("IMMACT"), Pub.L. No. 101-649, Sec. 501(a), 104 Stat. 5048, 5048 (1990). The new definition included attempted armed robbery within the definition of "aggravated felony." ⁴ By amending this definition, Congress broadened significantly the scope of Sec. 1326(b)(2).

However, the effective date of the 1990 IMMACT amendment provides that the amended definition shall apply only to "offenses committed on or after the date of the enactment of this Act ... [Nov. 29, 1990]." IMMACT, Sec. 501(b). The government concedes that, as a result of this legislative directive with respect to the effective date, a crime can be classified as an "aggravated felony" only if committed on or after November 29, 1990. See De Osorio v. INS, 10 F.3d 1034, 1040 (4th Cir.1993).

(2) The Sentencing Guideline: U.S.S.G. Sec. 2L1.2

Subsequent to the adoption of 8 U.S.C. Sec. 1326(b) in 1988, the Sentencing Commission adopted corresponding amendments to U.S.S.G. Sec. 2L1.2(b)--the applicable guideline section for a violation of 8 U.S.C. Sec. 1326 U.S.S.G. Sec. 2L1.2, comment. (statutory provisions); U.S.S.G.App. A at 370. Subsection (b)(1) first appeared in amendment 193 to the Guidelines, becoming effective November 1, 1989. U.S.S.G. Sec. 2L1.2(b), comment. (hist. note). At the time of the amendment, the following application note was included:

3. A 4-level increase is provided under subsection (b)(1) in the case of a defendant who was previously deported after sustaining a conviction for a felony, other than a felony involving a violation of the immigration laws. In the case of a defendant previously deported after sustaining a conviction for an aggravated felony ... an upward departure may be warranted.

In 1991, Sec. 2L1.2(b) was further amended. The new section retained the four-level enhancement if the alien's deportation followed a felony conviction (Sec. 2L1.2(b)(1)), and added a sixteen-level enhancement if the deportation followed an aggravated felony conviction (Sec. 2L1.2(b)(2)). The commentary to this amendment states that its purpose was to eliminate the need to request an upward departure for a prior aggravated felony because the Commission had determined that a 16-level increase was "appropriate to reflect the serious nature of these offenses." The guideline employs a definition of "aggravated felony" which is almost identical to that found in 8 U.S.C. Sec. 1101(a)(43). See U.S.S.G. Sec. 2L1.2, comment. (n.7).

2.

In this appeal, Mr. Munoz-Cerna submits that the district court erred in applying the enhancement required by the guidelines when the aggravated felony was committed prior to deportation. In essence, he argues that it is error to apply this guideline enhancement to him because the statutory enhancement permitted by the 1990 IMMACT is not applicable. Failure on the part of the Sentencing Commission to follow the effective date employed by the Congress when it enacted IMMACT is, in his view, unreasonable and violates the congressional intent. He submits that we must read the statutory provision in IMMACT and the guideline provision as a totality. The statutory provision describes the proscribed act and the guideline simply sets the sentence for that proscribed act. Any other interpretation, he further submits, is not only contrary to the statutory intent, but creates an absurd result that violates the most basic rules of statutory construction. In the alternative, Mr. Munoz-Cerna asks that we regard the Commission's failure to employ the same effective date adopted by the Congress as a failure on the part of the Commission to follow the manifest congressional intent with respect to the treatment of aggravated felonies. He reads IMMACT as a statutory directive that aggravated felonies be treated as the Congress elected to treat them in IMMACT and suggests that the Commission erred by "omitting" the same effective date as IMMACT.

In evaluating Mr. Munoz-Cerna's position, we note at the outset that we have no quarrel with the overarching principle that he articulates. We have acknowledged that, although Congress has chosen to address sentencing policy issues through both statutes and sentencing guidelines, we ought not presume lightly that it intended that these two vehicles of its legislative will be at odds with each other. ⁵ Our acceptance of this basic proposition does not, however, necessarily require that we accept the result that he suggests follows inexorably from this proposition.

Mr. Munoz-Cerna was indicted for...