U.S. v. Peralta-Espinoza, 04-CR-282.

• Decision Date: 03 February 2006
• Docket Number: No. 04-CR-282.,04-CR-282.
• Citation: 413 F.Supp.2d 972
• Parties: UNITED STATES of America Plaintiff, v. Cirilo PERALTA-ESPINOZA Defendant.
• Court: U.S. District Court — Eastern District of Wisconsin

Page 972

413 F.Supp.2d 972

UNITED STATES of America Plaintiff, v. Cirilo PERALTA-ESPINOZA Defendant.

No. 04-CR-282.

United States District Court, E.D. Wisconsin.

February 3, 2006.

Penelope L. Coblentz, United States Department of Justice, Office of the U.S. Attorney, Milwaukee, WI, for Plaintiff.

Calvin R. Malone, Federal Defender Services of Wisconsin Inc., Milwaukee, WI, for Defendant.

SENTENCING MEMORANDUM

ADELMAN, District Judge.

Defendant Cirilo Peralta-Espinoza pleaded guilty to unlawful re-entry after deportation. The probation office prepared a pre-sentence report ("PSR"), which recommended an offense level of 13 (base level 8, U.S.S.G. § 2L1.2(a), plus 8 because defendant was deported after his conviction of an "aggravated felony," § 2L1.2(b)(1)(C), and minus 3 for acceptance of responsibility, § 3E1.1) and a criminal history category of III, producing an imprisonment range of 18-24 months under the sentencing guidelines.

Defendant objected to the 8 level enhancement under § 2L1.2(b)(1)(C), moved for a downward departure under § 5G1.3(c), and requested a sentence concurrent to one he was then serving in state prison. The government opposed his requests. In this decision I address the parties' contentions and set forth more fully the basis for the sentence imposed.

I. FACTS AND BACKGROUND

Defendant was born in Mexico in 1965. He entered the United States illegally in 1985 in order to find work. In December 1990, he was granted resident alien status and in August 1994 admission as a permanent resident for employment purposes. However, on December 5, 1994, defendant was convicted in Arizona state court of attempting to possess more than four pounds of marijuana, a felony under state law. He was placed on three years probation with 120 days in jail as a condition and removed from the United States on January 6, 1995.

In June 2004, defendant was found by Immigration and Customs Enforcement ("ICE") at the Racine County, Wisconsin jail, after his arrest for cocaine distribution. Defendant told the ICE agent that he paid a smuggler to assist him in illegally re-entering the United States in January 2003.¹ He stated that he crossed the border in Arizona, then took a bus to Racine, where he apparently had family. In October 2004, a state court judge sentenced defendant to five years in prison followed by five years of extended supervision on the cocaine charge. In June 2005, he pleaded guilty to illegal re-entry after deportation, contrary to 8 U.S.C. § 1326, in this court.

II. SENTENCING PROCEDURE

In light of United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), I follow a three-step sentencing procedure. First, I determine the applicable advisory guideline range, resolving any factual disputes and PSR objections necessary to that determination. Second, I determine whether, pursuant to the Sentencing Commission's policy statements, any departures from the advisory guideline range clearly apply.² Finally, I determine the appropriate sentence in light of the factors set forth in 18 U.S.C. § 3553(a). See, e.g., United States v. Pallowick, 364 F.Supp.2d 923, 925-26 (E.D.Wis.2005).

III. GUIDELINE DETERMINATION

Defendant objected to the 8 level enhancement, under U.S.S.G. § 2L1.2(b)(1)(C). The enhancement applies if the defendant was deported after his conviction of "an aggravated felony." In recommending the enhancement, the PSR relied upon defendant's 1994 conviction of attempted possession of marijuana in Arizona state court. The facts of the case as related by the PSR suggest possession with intent to deliver, but the conviction was for possession only.³ Although this offense was a felony under Arizona law, it would only be a misdemeanor under federal law, see 21 U.S.C. § 844(a). The question was whether, under these circumstances, the offense constituted an "aggravated felony" under § 2L1.2(b)(1)(C).

The commentary to § 2L1.2 explains that the term "aggravated felony" has the same meaning given that term in 8 U.S.C. § 1101(a)(43)—a provision applicable in both the immigration and criminal law contexts. See U.S.S.G. § 2L1.2 cmt. n. 3(A). In pertinent part, § 1101(a)(43) defines the term "aggravated felony" as "illicit trafficking in a controlled substance (as defined in section 102 of the Controlled Substances Act), including a drug trafficking crime (as defined in section 924(c) of title 18, United States Code)." 8 U.S.C. § 1101(a)(43)(B). Simple possession does not constitute "illicit trafficking in a controlled substance" under the first part of § 1101(a)(43), thus, I examined the second phrase, i.e. a "drug trafficking crime (as defined in section 924(c) of Title 18)." See Gonzales-Gomez v. Achim, 372 F.Supp.2d 1062, 1065 (N.D.Ill.2005).

Section 924(c) of Title 18 defines the term "drug trafficking crime" as "any felony punishable under the Controlled Substances Act ["CSA"] (21 U.S.C. 801 et seq.), the Controlled Substances Import and Export Act (21 U.S.C. 951 et seq.), or the Maritime Drug Law Enforcement Act (46 U.S.C.App.1901 et seq.)." 18 U.S.C. § 924(c)(2). Courts have adopted two competing interpretations of the phrase "any felony punishable under" the enumerated statutes listed in § 924(c)(2), see United States v. Palacios-Suarez, 418 F.3d 692, 695-96 (6th Cir.2005); Masok v. Achim, No. 04-C-7503, 2005 WL 1017891, at *3-5, 2005 U.S. Dist. LEXIS 8108, at *9-15 (N.D.Ill. Apil 28, 2005); Gonzales-Gomez, 372 F.Supp.2d at 1065-66, and the Seventh Circuit has not chosen sides.

The majority view—called the "guideline approach" or the "state felony approach"— is that the phrase means that a state drug conviction is a "drug trafficking crime" and therefore an "aggravated felony" if (1) the conviction is a felony under either state or federal law and (2) the conduct underlying the conviction is punishable under the CSA. Palacios-Suarez, 418 F.3d at 696; Gonzales-Gomez, 372 F.Supp.2d at 1067. Under this view, it does not matter that the conduct would only be punishable as a misdemeanor under federal law. This approach has been adopted by the First, Second, Fourth, Fifth, Eighth, Tenth and Eleventh Circuits in the criminal/sentencing context. See, e.g., United States v. Wilson, 316 F.3d 506, 513 (4th Cir.2003); United States v. Pornes-Garcia, 171 F.3d 142, 148 (2d Cir.1999); United States v. Simon, 168 F.3d 1271, 1272 (11th Cir. 1999); United States v. Hinojosa-Lopez, 130 F.3d 691, 694 (5th Cir.1997); United States v. Briones-Mata, 116 F.3d 308, 309 (8th Cir.1997); United States v. Cabrera-Sosa, 81 F.3d 998, 1000 (10th Cir.1996); United States v. Restrepo-Aguilar, 74 F.3d 361, 365 (1st Cir.1996).

The minority view—called the "hypothetical federal felony" or the "hypothetical felony" approach—reads the phrase "any felony punishable under [the CSA]" to mean any offense punishable as a felony under the CSA, regardless of the forum in which the conviction was actually obtained. Gonzales-Gomez, 372 F.Supp.2d at 1066. Thus, under this approach, a state felony drug possession conviction (not involving any element of trafficking) that would only be punishable as a federal misdemeanor would not constitute an "aggravated felony" under § 1101(a)(43)(B). Palacios-Suarez, 418 F.3d at 695. This is the view originally adopted by the Board of Immigration Appeals ("BIA")⁴ and is adhered to by the Sixth Circuit in the criminal/sentencing context, and the Second, Third and Ninth Circuits in the immigration contexts.⁵ Id.

I concluded that the hypothetical felony approach made the most sense.

In order to decide the issue, I had to divine the meaning of the phrase "any felony punishable under [the CSA]" in § 924(c). The starting point of statutory construction is the plain language of the statute itself; if the words are clear I need go no further. See Cler v. Ill. Educ. Ass'n, 423 F.3d 726, 730 (7th Cir.2005). Several courts following the guideline approach have found the phrase "any felony punishable under [the CSA]" to be unambiguous. Palacios-Suarez, 418 F.3d at 697 (citing Wilson, 316 F.3d at 512; United States v. Ibarra-Galindo, 206 F.3d 1337, 1339 (9th Cir.2000); Simon, 168 F.3d at 1272; Restrepo-Aguilar, 74 F.3d at 364). These courts believe that the statute plainly applies to any felony if the underlying conduct could also be punished under the CSA. See, e.g., Restrepo-Aguilar, 74 F.3d at 364 (holding that the statutory definition in § 924(c) "plainly does not require that an offense, in order to be a drug trafficking crime, be subject to a particular magnitude of punishment if prosecuted under the CSA"). It seemed to me that, to the extent the statute's plain language supported either approach, it was the hypothetical felony view. The language "any felony punishable under [the CSA]" is most naturally read to mean that the crime must be a felony under the CSA. See United States v. Castillo, 406 F.3d 806, 814 (7th Cir.2005) (stating that statutes are to be construed according to the ordinary and natural meaning of their language).

In adopting the guideline approach, the Ninth Circuit stated, "if Congress had intended [the hypothetical federal felony approach], it would have most naturally referred to offenses `punishable as felonies under the Controlled Substances Act,' but it did not." Ibarra-Galindo, 206 F.3d at 1339. However, as the dissenting judge in Ibarra-Galindo noted, "it is a rare statute . . . that could not have been written more clearly than it was." Id. at 1342 (Canby, J., dissenting). Indeed, if Congress had intended the guideline approach it could have just as easily written the statute to define a drug trafficking crime as "an offense punishable under the CSA and constituting a felony under either federal or state law." Id. at 1342 n. 2 (Canby, J., dissenting). Thus, I found that the language of § 924(c) did not clearly support the guideline approach. See Palacios-Suarez, 418 F.3d at 697-98; see also Gonzales-Gomez, 372 F.Supp.2d at 1069-70 ("As we look at the...