United States v. Guillen-Cruz

• Decision Date: 10 April 2017
• Docket Number: No. 16-40131,16-40131
• Citation: 853 F.3d 768
• Parties: UNITED STATES of America, Plaintiff–Appellee v. Martin GUILLEN-CRUZ, also known as Martin Guillen-Martinez, Defendant–Appellant
• Court: U.S. Court of Appeals — Fifth Circuit

853 F.3d 768

UNITED STATES of America, Plaintiff–Appellee

v.Martin GUILLEN-CRUZ, also known as Martin Guillen-Martinez, Defendant–Appellant

No. 16-40131

United States Court of Appeals, Fifth Circuit.

Filed April 10, 2017

Carmen Castillo Mitchell, Jimmy Eric Pardue, Assistant U.S. Attorneys, U.S. Attorney's Office, Southern District of Texas, Houston, TX, for Plaintiff–Appellee.

Marjorie A. Meyers, Federal Public Defender, Philip G. Gallagher, H. Michael Sokolow, Assistant Federal Public Defenders, Federal Public Defender's Office, Southern District of Texas, for Defendant–Appellant.

Before DAVIS, DENNIS, and SOUTHWICK, Circuit Judges.

JAMES L. DENNIS, Circuit Judge:

Defendant-Appellant Martin Guillen-Cruz pleaded guilty to being found in the United States after a previous deportation in violation of 8 U.S.C. § 1326(a) and (b). The probation officer who prepared Guillen-Cruz's presentence report (PSR) added eight points to his offense level because he had a prior conviction for exporting defense articles on the United States Munitions List without a license in violation of 22 U.S.C. § 2778(b)(2) and (c). The PSR concluded that Guillen-Cruz's conviction constituted a prior aggravated felony for purposes of the United States Sentencing Guidelines (USSG or Guidelines) § 2L1.2(b)(1)(C),¹ as defined in 8 U.S.C. § 1101(a)(43)(C). After all the factors were accounted for, the PSR calculated Guillen-Cruz's offense level as 14. At sentencing, the district court reduced the offense level to 13, resulting in an advisory sentencing range of 18 to 24 months' imprisonment. The district court sentenced Guillen-Cruz to 24 months' imprisonment.

Guillen-Cruz appeals, asserting an argument he did not raise below: the district court inappropriately imposed a sentencing enhancement pursuant to USSG § 2L1.2(b)(1)(C). Because we find that the district court erred in imposing the enhancement, that each factor of plain error review is satisfied, and that the error merits the exercise of our discretion, we VACATE Guillen-Cruz's sentence and REMAND for resentencing.

I

This court reviews the district court's interpretation of the Guidelines de novo. United States v. Ocana , 204 F.3d 585, 588 (5th Cir. 2000). Because Guillen-Cruz did not raise an objection to the enhancement before the district court, we review for plain error. See United States v. Hernandez , 690 F.3d 613, 620 (5th Cir. 2012). To establish plain error, Guillen-Cruz must show: (1) an error or defect "that has not been intentionally relinquished or abandoned"; (2) that the legal error was "clear or obvious, rather than subject to reasonable dispute"; and (3) that the error affected his substantial rights. United States v. Escalante-Reyes, 689 F.3d 415, 419 (5th Cir. 2012) (en banc) (quoting Puckett v. United States , 556 U.S. 129, 135, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009) ). If these three elements are satisfied, we have the discretion to remedy the error "if the error seriously affect[s] the fairness, integrity or public reputation of judicial proceedings." Id. (quoting Puckett , 556 U.S. at 135, 129 S.Ct. 1423 ).

II

Under USSG § 2L1.2(b)(1)(C), a district court must increase a defendant's offense level by eight if the defendant has previously been deported after a conviction for an aggravated felony. "Aggravated felony" has the meaning given that term at 8 U.S.C. § 1101(a)(43), which contains a lengthy list of offenses and categories of offenses. The Government argues that Guillen-Cruz's prior conviction under 22 U.S.C. § 2778 qualifies as an aggravated felony either under 8 U.S.C. § 1101(a)(43)(C), defining aggravated felony as "illicit trafficking in firearms," "destructive devices," or "explosive materials," or under § 1101(a)(43)(E)(ii), defining aggravated felony as an offense described in 18 U.S.C. § 924(b).

A

When considering whether a defendant's prior conviction constitutes an aggravated felony, "courts use what has become known as the ‘categorical approach’: They compare the elements of the statute forming the basis of the defendant's conviction with the elements of the ‘generic’ crime—i.e. , the offense as commonly understood." Descamps v. United States , –––U.S. ––––, 133 S.Ct. 2276, 2281, 186 L.Ed.2d 438 (2013). However, "[i]f the statute of conviction defines multiple offenses, at least one of which does not describe an aggravated felony, we apply a modified categorical approach." Larin-Ulloa v. Gonzales , 462 F.3d 456, 464 (5th Cir. 2006). This modified categorical approach allows for examination of specified documents to determine under which subsection of a divisible statute the individual was convicted. Omari v. Gonzales , 419 F.3d 303, 308 (5th Cir. 2005). For guilty plea convictions, this "may include consideration of the ‘charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented.’ " Id. (quoting Shepard v. United States , 544 U.S. 13, 20–21, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005) ). Usually, courts must first determine whether to apply the categorical or modified categorical approach. See generally Mathis v. United States , ––– U.S. ––––, 136 S.Ct. 2243, 195 L.Ed.2d 604 (2016). However, because Guillen-Cruz's prior offense is not an aggravated felony under either approach, we pretermit deciding which approach is applicable.²

B

Guillen-Cruz's sentence was enhanced based on a violation of 22 U.S.C. § 2778(b)(2) and (c), which prohibit the willful export of articles on the Munitions List, 22 C.F.R. § 121.1, without a license. Guillen-Cruz argues that his conviction is not an aggravated felony because he was convicted of exporting high-capacity rifle magazines, which he contends is conduct that does not fall under the definition of aggravated felony at 8 U.S.C. § 1101(a)(43)(C). The Government does not argue to the contrary, instead asserting that Guillen-Cruz cannot meet his burden on plain error review because no case establishes that a conviction under 22 U.S.C. § 2778(b) and (c) does not qualify as an aggravated felony.

The Government is correct that, generally, "if a defendant's theory requires the extension of precedent, any potential error could not have been ‘plain.’ " United States v. Guzman , 739 F.3d 241, 246 n.8 (5th Cir. 2014) (quoting United States v. Garcia-Rodriguez , 415 F.3d 452, 455 (5th Cir. 2005) ). However, this court has found clear error in the absence of precedent where the plain language of the prior offense statute clearly criminalized conduct outside of the Guidelines offense. See United States v. Maturin , 488 F.3d 657, 663 (5th Cir. 2007). To our knowledge, no court has previously decided whether a conviction under 22 U.S.C. § 2778(b)(2) and (c) constitutes an aggravated felony as defined by 8 U.S.C. § 1101(a)(43)(C). Notwithstanding the lack of precedent, it is plain from the face of the relevant statutes and regulations that it does not.

As used in the relevant sentencing provision, USSG § 2L1.2(b)(1)(C), " ‘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) )." Section 1101(a)(43)(C) defines aggravated felony as "illicit trafficking in firearms or destructive devices (as defined in [18 U.S.C. § 921 ] ) or in explosive materials (as defined in [18 U.S.C. § 841(c) ] )." Under 18 U.S.C. § 921(a)(3), a "firearm" is defined as "(A) any weapon (including a starter gun) which will or is designed to or may readily be converted to expel a projectile by the action of an explosive; (B) the frame or receiver of any such weapon; (C) any firearm muffler or firearm silencer; or (D) any destructive device." A "frame or receiver" is the "part of a firearm which provides housing for the hammer, bolt or breechblock and firing mechanism, and which is usually threaded at its forward portion to receive the barrel." 27 C.F.R. § 479.11. The term "destructive device" means "any explosive, incendiary, or poison gas" bomb, grenade, mine, rocket, missile, or similar device. 18 U.S.C. § 921(a)(4)(A). A destructive device may also be "any type of weapon ... which will, or which may be readily converted to, expel a projectile by the action of an explosive or other propellant, and which has any barrel with a bore of more than one-half inch in diameter." Id. § 921(a)(4)(B). Destructive devices include "any combination of parts either designed or intended for use in converting any device into any destructive device described [above] and from which a destructive device may be readily assembled." Id. § 921(a)(4)(C). " ‘Explosive materials' means explosives, blasting agents, and detonators." Id. § 841(c).

A magazine is an element of a firearm that houses ammunition. See United States v. Gonzalez , 792 F.3d 534, 535–36 (5th Cir. 2015) (including a helpful primer on magazines). Under the definitions discussed above, a rifle magazine is plainly not a "firearm" or "the frame or receiver" of a firearm or a "muffler or firearm silencer." See 18 U.S.C. § 921(a)(3). Nor is a magazine a "destructive device" for purposes of § 921(a)(4)(A). The closest apparent match is a sub-definition of destructive device that includes "any type of weapon [or combination of parts] ... which will, or which may be readily converted to, expel a projectile by the action of an explosive or other propellant, and which has any barrel with a bore of more than one-half inch in diameter." Id. at § 921(a)(4)(B)–(C). However, Guillen-Cruz's prior conviction was for export of magazines that hold 7.62x39 millimeter ammunition, and the statute requires that a weapon or "combination of parts" to create such weapon must have a "barrel with a bore of more than one-half inch in diameter." Id. Even if a magazine could constitute a subset of a "combination of parts" for purposes of this provision, the barrel bore for a weapon that uses 7.62 millimeter, or .3 inch, ammunition, would not be more than half-an-inch in diameter.³

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