U.S. v. Pornes-Garcia, PORNES-GARCI

• Decision Date: 26 March 1999
• Docket Number: Docket No. 98-1335,D,PORNES-GARCI
• Citation: 171 F.3d 142
• Parties: UNITED STATES of America, Appellee, v. Pedroefendant-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

Page 142

171 F.3d 142

UNITED STATES of America, Appellee, v. Pedro PORNES-GARCIA, Defendant-Appellant.

Docket No. 98-1335.

United States Court of Appeals, Second Circuit.

Argued Jan. 26, 1999.

Decided March 26, 1999.

Abraham L. Clott, Legal Aid Society, New York, New York, for defendant-appellant.

Mark F. Mendelsohn, Asst. U.S. Atty., New York, N.Y. (Mary Jo White, U.S. Atty., Craig A. Stewart, Asst. U.S. Atty., New York, N.Y., on the brief), for appellee.

Before: NEWMAN, WALKER, and CALABRESI, Circuit Judges.

JON O. NEWMAN, Circuit Judge:

The narrow issue on this appeal is whether this Court's construction of the phrase "aggravated felony" in a deportation statute applies to the same phrase used in the Sentencing Guidelines for purposes of determining a sentencing enhancement for an immigration offense. In Aguirre v. INS, 79 F.3d 315 (2d Cir.1996), we ruled that "aggravated felony," as defined in the Immigration and Nationality Act, see 8 U.S.C. § 1101(a)(43)(1994 & Supp. II 1996), excludes drug offenses that are state, but not federal, felonies. The issue here is whether that same narrow construction applies to section 2L1.2(b)(1)(A) of the Sentencing Guidelines, which specifies a sixteen-level sentencing enhancement when a defendant illegally reenters the country after having been deported following his conviction of an "aggravated felony." Pedro Pornes-Garcia appeals from the June 15, 1998, judgment of the United States District Court for the Southern District of New York (Deborah A. Batts, District Judge), convicting him, on a plea of guilty, of illegally reentering the United States after having been deported, in violation of 8 U.S.C. § 1326 (Supp. II 1996), and sentencing him to fifty-one months of imprisonment. He challenges the sixteen-level enhancement he received.

We conclude that Aguirre did not alter the test applied by this Court to determine whether an offense of conviction is an aggravated felony for purposes of the sentencing enhancement under section 2L1.2(b)(1)(A). Prior to his deportation in 1993, Pornes-Garcia had been convicted of a crime that constitutes an aggravated felony under that test; accordingly, imposition of the sixteen-level sentencing enhancement was required. We therefore affirm.

Background

Pornes-Garcia illegally entered the United States in 1984. After being arrested for possession of one-half a kilogram of cocaine, Pornes-Garcia pleaded guilty in 1991 in New York state court to attempted criminal possession in the first degree. He was sentenced to a term of imprisonment of three years to life. After serving approximately two years and seven months of his sentence, Pornes-Garcia was paroled on September 16, 1993. Two weeks later, he was deported to the Dominican Republic.

Pornes-Garcia illegally returned to the United States and again became involved with narcotics. In July 1995, he was arrested by New York state law enforcement authorities and charged with criminal sale of a controlled substance. A month later, a federal grand jury returned an indictment against Pornes-Garcia, charging him with illegally reentering the United States after having been deported following his conviction for the commission of an aggravated felony. On the New York state drug charge, Pornes-Garcia pleaded guilty to criminal sale of a controlled substance in the fifth degree and received an indeterminate sentence of two to four years' imprisonment. With respect to the federal charge of illegal reentry, Pornes-Garcia pleaded guilty.

The Presentence Report calculated his total offense level as twenty-one, reflecting a base offense level of eight, see U.S.S.G. § 2L1.2(a)(1997), a sixteen-level enhancement for reentering after having been deported subsequent to his conviction of an aggravated felony, see id. § 2L1.2(b)(1)(A), and a three-level reduction for acceptance of responsibility, see id. § 3E1.1. At sentencing, Pornes-Garcia asked the District Court to depart downward on two grounds, neither of which is relevant to this appeal. In addition, he objected to the sixteen-level enhancement pursuant to section 2L1.2(b)(1)(A), arguing that his 1991 state drug conviction was not an aggravated felony within the applicable definition of that term.

Application note 1 to section 2L1.2 incorporates the definition of "aggravated felony" found in 8 U.S.C. § 1101(a)(43) for purposes of determining which defendants are subject to the sixteen-level enhancement. See U.S.S.G. § 2L1.2 comment. n. 1. Pornes-Garcia argued that this Court's decision in Aguirre, 79 F.3d 315, authoritatively construed the definition of aggravated felony under section 1101(a)(43) as excluding a conviction for a drug offense that is classified as a felony under the law of the state in which the defendant was convicted, but, if prosecuted federally, would have resulted in a misdemeanor conviction. Aguirre held that such a conviction does not constitute a conviction for an aggravated felony for purposes of determining whether an alien is ineligible for asylum or withholding of deportation under the Immigration and Nationality Act. The District Court rejected Pornes-Garcia's argument, stating that it had "great difficulty finding [Aguirre 's construction] applicable to the sentencing guidelines" and that this Court's decision in United States v. Polanco, 29 F.3d 35 (2d Cir.1994), which considered the meaning of "aggravated felony" in the sentencing context, supported imposition of the enhancement in Pornes-Garcia's case. Accordingly, the District Court increased Pornes-Garcia's offense level by sixteen levels and sentenced him to fifty-one months' imprisonment.

Discussion

Where, as here, a sentencing court's application of the Guidelines "approaches a purely legal question," we review that application de novo. United States v. Medina, 74 F.3d 413, 417 (2d Cir.1996).

Section 1326(a) of title 8 makes it a crime for a deported alien to return to the United States without special permission from the Attorney General and authorizes a maximum prison term of two years. Section 1326(b) authorizes an enhanced penalty of up to twenty years' imprisonment for "any alien described" in subsection (a) "whose removal was subsequent to a conviction for commission of an aggravated felony." 8 U.S.C. § 1326(b)(2); see also Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 1224-26, 140 L.Ed.2d 350 (1998). Section 2L1.2 of the Sentencing Guidelines applies to offenses under 8 U.S.C. § 1326. That guideline specifies a base offense level of eight for illegal reentry and, in accordance with the statutory scheme, section 2L1.2(b)(1)(A) provides for a mandatory sentencing enhancement where the defendant is convicted of reentry after deportation if that deportation followed the defendant's conviction for the commission of an aggravated felony. ¹ Although "aggravated felony" is not defined in the guideline, application note 1 to section 2L1.2 states, " '[A]ggravated felony' is defined at 8 U.S.C. § 1101(a)(43)." U.S.S.G. § 2L1.2 comment. n. 1.

Because the statutory definition of aggravated felony incorporates still other statutory definitions, a close examination of the relevant provisions is necessary. Section 1101(a)(43) of title 8 defines "aggravated felony" as, among other things, "illicit trafficking in a controlled substance (as defined in section 802 of Title 21), including a drug trafficking crime (as defined in section 924(c) of Title 18)." 8 U.S.C. § 1101(a)(43)(B). Section 1101(a)(43) further provides that the term aggravated felony "applies to an offense described in [section 1101(a)(43) ] whether in violation of Federal or State law." Id. § 1101(a)(43). In section 924(c)(2) of title 18, a "drug trafficking crime" is defined as including "any felony punishable under the Controlled Substances Act (21 U.S.C. § 801 et seq.)." 18 U.S.C. § 924(c)(2) (1994). The Controlled Substances Act, in turn, defines "felony" as "any Federal or State offense classified by applicable Federal or State law as a felony." 21 U.S.C. § 802(13) (1994).

In Polanco, 29 F.3d at 38, we ruled that a defendant's prior conviction constitutes a "drug trafficking crime" under 18 U.S.C. § 924(c)(2) and, therefore, an "aggravated felony" mandating the sixteen-level enhancement pursuant to section 2L1.2 of the Guidelines, if: (1) the offense is punishable under the Controlled Substances Act, and (2) it is a felony under either state or federal law. See id. at 38 (citing United States v. Forbes, 16 F.3d 1294, 1301 & n. 10 (1st Cir.1994)). These criteria determine an "aggravated felony" for purposes of the sentencing enhancement "regardless of the quantity or nature of the contraband or the severity of the sentence imposed." Id. Under this test, so long as the prior offense conduct is punishable under the Controlled Substances Act, the enhancement applies to a defendant whose prior offense was prosecuted as a state law felony even though it would have resulted in a misdemeanor conviction if prosecuted under federal law.

Four other courts of appeals have adopted a similar test. See United States v. Hinojosa-Lopez, 130 F.3d 691, 693-94 (5th Cir.1997); United States v. Briones-Mata, 116 F.3d 308, 309-10 (8th Cir.1997); United States v. Cabrera-Sosa, 81 F.3d 998, 1000-01 (10th Cir.1996); United States v. Restrepo-Aguilar, 74 F.3d 361, 364-65 (1st Cir.1996). Furthermore, this test has been applied by courts of appeals to classify crimes of mere drug possession as "drug trafficking crimes" under section 924(c)(2) and, by extension, an aggravated felony under section 2L1.2 of the Guidelines. See, e.g., Hinojosa-Lopez, 130 F.3d at 694; Briones-Mata, 116 F.3d at 309; Cabrera-Sosa, 81 F.3d at 1000.

Under the Polanco test, Pornes-Garcia's 1991 conviction qualifies as a conviction for the commission of an "aggravated felony" for purposes of section 2L1.2(b)(1)(A). First, the offense conduct to which he pleaded guilty, attempted possession of cocaine in the first...