U.S. v. Olvera-Cervantes, OLVERA-CERVANTE

• Decision Date: 24 March 1992
• Docket Number: D,No. 91-30093,OLVERA-CERVANTE,91-30093
• Citation: 960 F.2d 101
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Marco Antonioefendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 101

960 F.2d 101

UNITED STATES of America, Plaintiff-Appellee, v. Marco Antonio OLVERA-CERVANTES, Defendant-Appellant.

No. 91-30093.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Jan. 9, 1992.

Decided March 24, 1992.

Carol Koller, Asst. Federal Public Defender, Seattle, Wash., for defendant-appellant.

Lis Wiehl, Asst. U.S. Atty., Seattle, Wash., for plaintiff-appellee.

Appeal from the United States District Court for the Western District of Washington.

Before WRIGHT, Circuit Judge, NORRIS and CYNTHIA HOLCOMB HALL, Circuit Judges.

WILLIAM A. NORRIS, Circuit Judge:

Section 2L1.2 of the Sentencing Guidelines requires that aliens convicted of illegally reentering the United States receive a heavier sentence if they had been originally deported after being convicted of a felony. Under federal law, all offenses that carry a maximum penalty in excess of one year are felonies. In this case, we are asked to decide whether, in considering prior state convictions, section 2L1.2 defines a felony by reference to the maximum penalty authorized for the offense by the state statute or by reference to the maximum penalty authorized for the offense by the analogous federal statute. We hold that section 2L1.2 defines a felony by reference to the maximum penalty authorized for the offense by the state statute of conviction.

I

In 1989, defendant Olvera-Cervantes, an undocumented alien, was convicted of possession of cocaine under Revised Code Washington (R.C.W.) § 69.50.401(d), which carries a maximum penalty of five years. Olvera-Cervantes was sentenced to thirty days in jail. He was deported in early 1990 after serving his sentence.

Subsequently, Olvera-Cervantes returned to the United States illegally. After he was apprehended, he was charged with illegal reentry after deportation in violation of 8 U.S.C. § 1326. He pled guilty. Under the Sentencing Guidelines section 2L1.2, the sentencing court must enhance a defendant's presumptively applicable sentencing range if it finds that the defendant was originally deported after sustaining a felony conviction.

At sentencing, both parties agreed that the term "felony" in section 2L1.2 should be defined by reference to federal law and that federal law deems all offenses that carry a maximum penalty in excess of one year to be a felony. See 18 U.S.C. § 3559(a)(5). The parties disagreed, however, as to whether the district court should look to the maximum penalty authorized by the state statute under which the defendant was convicted or whether it should look to the maximum penalty authorized by the analogous federal statute. Although in most cases it would not make a difference whether state or federal maximum was applied, here it does. Cocaine possession is subject to a maximum penalty of five years in Washington, but it is subject to a maximum penalty of one year under federal law. See 21 U.S.C. § 844(a). Thus, under the government's interpretation, Olvera-Cervantes' prior conviction would be classified as a felony; under his interpretation, it would be classified as a misdemeanor.

The district court agreed with the government and sentenced Olvera-Cervantes within the higher applicable guidelines range. Olvera-Cervantes appeals his sentence.

II

The district court's interpretation of a Guidelines provision is subject to de novo review. United States v. Hill, 915 F.2d 502, 504-05 (9th Cir.1990).

The issue before us is a difficult one because neither the applicable Guidelines section nor the underlying criminal statute provides any guidance whatsoever. No other court seems to have directly confronted this issue. ¹ Moreover, the rule of lenity--which requires that we resolve ambiguities in criminal statutes in favor of defendants--is of little use here because we do not know whether the defendant's interpretation of section 2L1.2 would end up benefitting defendants in general. We are writing, then, essentially on a clean slate.

Perhaps his sole source of guidance are the purpasive structure animating the Sentencing Guidelines, in particular, the goal of reducing unwarranted sentencing disparities. Under the interpretation urged by the government, a defendant whose prior conviction for cocaine possession was in federal court would fare far better than a defendant whose prior conviction for the same offense was in state court. Therefore, Olvera-Cervantes argues, the government's interpretation would frustrate the goal of uniformity in sentencing. We reject this argument because we do not believe the Guidelines were designed to reduce the sentencing disparity that might arise from the fact that a defendant's prior conviction was in state court. In the context of determining a defendant's criminal history category, for instance,...