U.S. v. Santana-Illan, No. 08-4210 (10th Cir. 12/29/2009)

• Decision Date: 29 December 2009
• Docket Number: No. 08-4210.,08-4210.
• Parties: UNITED STATES OF AMERICA, Plaintiff-Appellee, v. HECTOR SANTANA-ILLAN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

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UNITED STATES OF AMERICA, Plaintiff-Appellee, v. HECTOR SANTANA-ILLAN, Defendant-Appellant.

No. 08-4210.

United States Court of Appeals, Tenth Circuit.

December 29, 2009.

Appeal from the United States District Court for the District of Utah; (D.C. No. 2:08-CR-00422-TS-1).

Before HENRY, Chief Judge, MURPHY, and O'BRIEN, Circuit Judges.

ORDER AND JUDGMENT^*

MICHAEL R. MURPHY, Circuit Judge

I. Introduction

Appellant, Hector Santana-Illan, pleaded guilty to a charge of illegally reentering the United States following deportation, in violation of 8 U.S.C. § 1326(a). A Presentence Investigation Report ("PSR") recommended an eight-level enhancement to Santana-Illan's base offense level pursuant to § 2L1.2(b)(1)(C) of the United States Sentencing Guidelines ("USSG"), based on Santana-Illan's prior Georgia conviction for drug possession. Santana-Illan filed a written objection to the eight-level enhancement, arguing his prior conviction was not an aggravated felony for purposes of § 2L1.2(b)(1)(C). The district court overruled Santana-Illan's objections, applied the eight-level enhancement to calculate his advisory guidelines range, and sentenced him to thirty months' imprisonment. In this appeal, Santana-Illan argues the district court erred when it applied the § 2L1.2(b)(1)(C) enhancement because a second conviction for simple possession is not an aggravated felony unless it was prosecuted as recidivist possession.¹ Exercising jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), we reverse Santana-Illan's sentence and remand the matter for resentencing.

II. Background

During a routine check of the Utah County Jail, it was discovered that Santana-Illan had previously been deported from the United States and had not received permission to reenter. He was subsequently charged in a one-count indictment with illegal reentry, in violation of 8 U.S.C. § 1326. After Santana-Illan pleaded guilty to the charge, a PSR was prepared. The PSR recommended an eight-level sentencing enhancement pursuant to USSG § 2L1.2(b)(1)(C). The enhancement is applicable to defendants convicted of unlawfully entering or remaining in the United States after a conviction for an aggravated felony. USSG § 2L1.2(b)(1)(C). The Government argued the enhancement was warranted based on Santana-Illan's 1998 California conviction for possession of marijuana and his 2003 Georgia conviction for possession of cocaine. Santana-Illan objected to the application of the enhancement and filed written objections to the PSR. Specifically, he argued his 2003 Georgia drug-possession conviction was not prosecuted as a recidivist crime and, thus, § 2L1.2(b)(1)(C) should not be used to calculate his advisory guidelines range because the conviction, alone or combined with the 1998 California drug-possession conviction, did not qualify as an aggravated felony.

The district court heard argument on the matter and ruled in favor of the Government, concluding the § 2L1.2(b)(1)(C) enhancement was applicable because Santana-Illan's 2003 simple possession conviction could have been prosecuted as a felony under the Controlled Substances Act ("CSA"), rendering it an aggravated felony for purposes of § 2L1.2(b)(1)(C). Application of the enhancement resulted in a total offense level of eleven. Combined with Santana-Illan's Criminal History Category VI, the advisory guidelines range was calculated as twenty-seven to thirty-three months. The district court imposed a sentence of thirty months.² Santana-Illan appeals, arguing the § 2L1.2(b)(1)(C) enhancement does not apply because he has never been convicted of recidivist possession or any other aggravated felony.

III. Discussion

If the district court incorrectly calculates a defendant's advisory guidelines range, the resulting sentence is procedurally unreasonable. United States v. Haley, 529 F.3d 1308, 1311 (10th Cir. 2008). Here, the district court concluded Santana-Illan's Georgia conviction for simple possession was an aggravated felony and, accordingly, calculated his advisory guidelines range by applying the eight-level enhancement under § 2L1.2(b)(1)(C). Santana-Illan argues his Georgia conviction is not an aggravated felony and, thus, his advisory guidelines range was incorrectly calculated. We review de novo the question of whether a prior conviction is an aggravated felony under the Guidelines. United States v. Venegas-Ornelas, 348 F.3d 1273, 1274 (10th Cir. 2003).

Section 2L1.2(b)(1)(C) of the Guidelines raises a defendant's offense level from to eight to sixteen if he has a previous "conviction for an aggravated felony." The term aggravated felony is not defined in the Guidelines but, instead, its meaning must be gleaned from a "series of statutory cross-references." United States v. Martinez-Macias, 472 F.3d 1216, 1218 (10th Cir. 2007). The path begins at Application Note 3 to § 2L1.2 which states, "`aggravated felony' has the meaning given that term in section 101(a)(43) of the Immigration and Nationality Act (8 U.S.C. § 1101(a)(43)), without regard to the date of conviction for the aggravated felony." U.S. Sentencing Guidelines Manual § 2L1.2 cmt. n.3(A). The statute referenced in the Application Note, 8 U.S.C. § 1101(a)(43), "defines `aggravated felony' in terms of a set of listed offenses." Nijhawan v. Holder, 129 S. Ct. 2294, 2297 (2009). The subsection of 8 U.S.C. § 1101(a)(43) relevant to this appeal provides that a drug trafficking crime defined in 18 U.S.C. § 924(c) is an aggravated felony. 8 U.S.C. § 1101(a)(43)(B). The trail ends at 18 U.S.C. § 924(c)(2), which defines the term "drug trafficking crime" as "any felony punishable under the Controlled Substances Act." Thus, for purposes of § 2L1.2(b)(1)(C), a prior state drug conviction qualifies as an aggravated felony if it would be punishable as a felony under the CSA.

The parties agree that Santana-Illan's two prior state drug convictions were both simple possession crimes.³ They also agree that simple possession of illegal drugs is punishable as a misdemeanor under the CSA, not as a felony. 21 U.S.C. § 844(a); Lopez v. Gonzales, 549 U.S. 47, 54 n.4 (2006); Martinez-Macias, 472 F.3d at 1218. But this general rule has exceptions, one of which is at the core of this appeal. As the Supreme Court noted in Lopez v. Gonzales, the crime of recidivist possession is a felony under the CSA and, thus, a drug trafficking crime under 18 U.S.C. § 924(c)(2). Lopez, 549 U.S. at 55 n.6 (stating that Congress "counterintuitively" defined recidivist possession as a drug trafficking offense); 21 U.S.C. § 844(a). The district court concluded Santana-Illan's 2003 Georgia conviction for simple possession of cocaine could have been prosecuted as recidivist possession under the CSA and, thus, it is a drug trafficking crime under 18 U.S.C. § 924(c)(2) and an aggravated felony for purposes of § 2L1.2(b)(1)(C). Santana-Illan challenges this approach, arguing his 2003 simple possession conviction was not actually prosecuted as recidivist possession and, thus, it cannot be an aggravated felony. The circuit courts of appeals are split on this issue.⁴ Compare Alsol v. Mikasey, 548 F.3d 207, 219 (2d Cir. 2008) (holding second simple possession conviction was not an aggravated felony because it was not prosecuted as recidivist possession), and Rashid v. Mukasey, 531 F.3d 438, 442-48 (6th Cir. 2008) (same), and Berhe v. Gonzales, 464 F.3d 74, 85-86 (1st Cir. 2006) (same), and Steele v. Blackman, 236 F.3d 130, 137-38 (3d Cir. 2001) (same), with United States v. Cepeda-Rios, 530 F.3d 333, 335-36 (5th Cir. 2008) (holding second simple possession conviction qualifies as an aggravated felony regardless of whether it was actually prosecuted as recidivist possession), and United States v. Pacheco-Diaz, 513 F.3d 776, 778-79 (7th Cir. 2008) (same). See also Matter of Carachuri-Rosendo, 24 I. & N. Dec. 382, 394 (BIA 2007) (en banc), review denied, Carachuri-Rosendo v. Holder, 570 F.3d 263 (5th Cir.), cert. granted, 78 U.S.L.W. 3058 (U.S. Dec. 14, 2009) (No. 09-60).

Lopez v. Gonzales provides a starting point for our analysis. In Lopez, the Supreme Court addressed the question of whether a conviction characterized as a felony under state law but a misdemeanor under the CSA was an aggravated felony under 8 U.S.C. § 1101(a)(43). Lopez, 549 U.S. at 50. The Court held that the classification of the crime as a felony by the state of conviction was irrelevant. "[A] state offense constitutes a `felony punishable under the Controlled Substances Act' only if it proscribes conduct punishable as a felony under [the CSA]." Id. at 60. The Court's approach of comparing the state offense of conviction to the CSA is commonly referred to as the "hypothetical federal felony approach," Alsol, 548 F.3d at 212, and it is consistent with the categorical approach used to compare state criminal statutes to analogous generic crimes. See, e.g., Gonzales v. Duenas-Alvarez, 549 U.S. 183, 186-87 (2007); see also Shepard v. United States, 544 U.S. 13, 16-17 (2005); Taylor v. United States, 495 U.S. 575, 598 (1990).

Consistent with the Lopez paradigm, we first examine Santana-Illan's Georgia conviction. In 2003, Santana-Illan was convicted of simple possession of cocaine, a crime that is punishable as a misdemeanor under the CSA. Santana-Illan does not dispute that if this crime had been prosecuted in federal court under the CSA, the Government could have proceeded under the recidivist provision of 21 U.S.C. § 844(a)⁵ because he had a previous final conviction for simple possession of marijuana. A successful federal prosecution for recidivist possession is a felony conviction that undeniably qualifies as an aggravated felony for purposes of § 2L1.2(b)(1)(C). Although the Government has not demonstrated or even alleged that Santana-Illan's Georgia drug-possession conviction was actually prosecuted as recidivist possession, it argues the hypothetical federal felony approach permits us to examine the...