United States v. Pena

• Decision Date: 11 March 2020
• Docket Number: No. 17-4778,17-4778
• Citation: 952 F.3d 503
• Parties: UNITED STATEs of America, Plaintiff - Appellee, v. Roberto Moreno PENA, a/k/a Alberto Zapata Sierra, Defendant - Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

952 F.3d 503

UNITED STATEs of America, Plaintiff - Appellee,

v.Roberto Moreno PENA, a/k/a Alberto Zapata Sierra, Defendant - Appellant.

No. 17-4778

United States Court of Appeals, Fourth Circuit.

Argued: December 10, 2019

Decided: March 11, 2020

Amended: March 11, 2020

ARGUED: Emily Deck Harrill, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Columbia, South Carolina, for Appellant. Marshall Taylor Austin, OFFICE OF THE UNITED STATES ATTORNEY, Charleston, South Carolina, for Appellee. ON BRIEF: Beth Drake, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South Carolina, for Appellee.

Before DIAZ and QUATTLEBAUM, Circuit Judges, and Max O. COGBURN, United States District Judge for the Western District of North Carolina, sitting by designation.

Affirmed in part, vacated and remanded in part by published opinion. Judge Quattlebaum wrote the opinion in which Judge Diaz and Judge Cogburn joined.

QUATTLEBAUM, Circuit Judge:

Roberto Moreno Pena ("Pena") was sentenced to 24 months in prison for illegally reentering the United States subsequent to conviction for an aggravated felony, in violation of 8 U.S.C. § 1326(a) and (b)(2). In appealing that sentence, he raises two primary issues. First, Pena appeals the classification of a 1989 Texas burglary conviction as an aggravated felony for purposes of 8 U.S.C. § 1326(b), which sets out penalties for aliens who have reentered the United States after removal subsequent to conviction for certain crimes. Second, Pena appeals the district court’s use of the Sentencing Guidelines in effect at the time of his sentencing because he contends they are more punitive than the version in effect at the time he committed the offense. For the reasons set forth below, we affirm in part, and we vacate and remand in part for resentencing consistent with this opinion.

I.

We begin with a review of 8 U.S.C. § 1326, the statute under which Pena was charged, pled guilty and was sentenced. Title 8 U.S.C. § 1326 prohibits the unauthorized reentry of an alien who has been previously deported from the United States. As a general matter, 8 U.S.C. § 1326(a) imposes a fine and/or imprisonment for up to two years for an alien who has illegally reentered the country. But that sentence can be increased based on the alien’s prior criminal conduct in the United States. Subsection (b)(1) imposes a fine and/or imprisonment for not more than 10 years for an alien "whose removal was subsequent to a conviction for commission of three or more misdemeanors involving drugs, crimes against the person, or both, or a felony (other than an aggravated felony)." 8 U.S.C. § 1326 (b)(1). Subsection (b)(2) imposes a fine and/or imprisonment for not more than 20 years for an alien "whose removal was subsequent to a conviction for commission of an aggravated felony." 8 U.S.C. § 1326 (b)(2).¹

II.

Against that backdrop, we turn to the facts relevant to this appeal. In 1990, Pena was removed from the United States to Mexico, following a 1989 Texas conviction for burglary of a habitation. After he again reentered the country illegally, he was convicted of possession of heroin. That led to a second removal in 2002. Pena returned illegally for the third time and was later arrested for driving without a license and under the influence. Following that arrest, Pena was charged with illegal reentry after deportation subsequent to a conviction for an aggravated felony, in violation of 8 U.S.C. § 1326(a) and (b)(2). The indictment charged that Pena unlawfully entered and was found in the United States without express consent of the proper authorities. The sentence associated with this offense is at issue here.

While represented by counsel, Pena pled guilty. During his plea hearing, the district court informed Pena that one of the elements of the offense was a previous conviction of an "aggravated felony," which was satisfied by his 1989 Texas burglary conviction. The district court accepted his guilty plea.

Subsequently, the United States Probation Office prepared a Presentence Report ("PSR") that calculated Pena’s offense level under the 2015 United States Sentencing Guidelines ("U.S.S.G.") Manual, the manual in effect when Pena committed the offense. Based on the 2015 Manual, the Probation Office recommended a base offense of 8 with a 4-level increase for a felony conviction under U.S.S.G. § 2L1.2(b)(1)(D).² After other adjustments, the Probation Office recommended a total offense level of 10 which, with Pena’s criminal history category of III, resulted in an advisory range of 10 to 16 months’ imprisonment.

Pena objected to the PSR, arguing the 1989 Texas burglary conviction was not an aggravated felony. He also filed a Motion to Strike Surplusage or in the Alternative to Withdraw Plea, claiming that he had not been convicted of an "aggravated felony."

Just prior to sentencing, the Probation Office issued a new PSR using the 2016 Guidelines Manual, the manual in effect at the time of sentencing, rather than the 2015 Guidelines used for the first PSR. In the new PSR, the Probation Office recommended a base offense level of 8, with a 10-level increase under U.S.S.G. § 2L 1.2 (b)(3)(A) because Pena engaged in criminal conduct that resulted in a felony after he was ordered to be deported from the United States for the first time. These calculations, after other adjustments for acceptance of responsibility, led to a total offense level of 15, a criminal history category of III and an advisory guidelines imprisonment range of 24 to 30 months.

At sentencing, Pena, still represented by counsel, objected to the new PSR. Relevant to this appeal, he argued that the 1989 Texas burglary did not qualify as an aggravated felony. Therefore, Pena argued he should not be subjected to the enhanced penalties of § 1326(b)(2). He also argued that the 2015 Guidelines Manual should be used to evaluate the sentence because it was less punitive than the 2016 Guidelines Manual.

The district court overruled Pena’s objection that Texas burglary did not qualify as an aggravated felony. In making this determination, the district court applied the "modified categorical approach." Using that approach, the court found Texas burglary qualified as both a theft offense and a burglary offense under 8 U.S.C. § 1101(a)(43)(G), which are potential forms of an aggravated felony under the Immigration and Nationality Act ("INA"). Having identified an aggravated felony under 8 U.S.C. § 1101(a) of the INA, the district court proceeded with sentencing in light of 8 U.S.C. § 1326, which once again sets forth the penalties for aliens who reenter the United States after removal subsequent to a conviction of certain crimes.

The district court stated: "I would end up giving the same sentence under either of the statutory schemes." J.A. 49. It then adopted the calculations under the 2016 Guidelines Manual, which, as described above, yielded a range of imprisonment of 24–30 months. The district court sentenced Pena to 24 months, indicating that but for Pena’s counsel’s argument for a downward departure, presumably regarding his lengthy sentence for possession of a controlled substance, it would have sentenced him to 30 months.

After judgment was entered, Pena timely filed his Notice of Appeal on December 15, 2017.

III.

Before addressing Pena’s arguments on appeal, we note our standard of review. Whether a crime is an aggravated felony is a question of law this Court reviews de novo. Castendet-Lewis v. Sessions , 855 F.3d 253, 260 (4th Cir. 2017). In evaluating whether the district court properly applied the advisory sentencing guidelines, we review the district court’s factual findings for clear error and its legal conclusions de novo. United States v. Layton , 564 F.3d 330, 334 (4th Cir. 2009). We review a sentence imposed by a district court for reasonableness, considering both procedural and substantive components. See Gall v. United States , 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007) ; United States v. Abu Ali , 528 F.3d 210, 260 (4th Cir. 2008). Our jurisdiction to review is authorized by 28 U.S.C. § 1291 and 18 U.S.C. § 3742.

IV.

With those standards in mind, we turn to Pena’s arguments on appeal. Pena first argues that his 1989 conviction for Texas burglary did not qualify as an aggravated felony. The INA, at 8 U.S.C. § 1101(a)(43), lists twenty-one categories of criminal conduct that qualify as an "aggravated felony." Two of the categories pertinent here are found in subsections (F) and (G). Subsection (F) refers to "a crime of violence (as defined in section 16 of Title 18, but not including a purely political offense) for which the term of imprisonment [is] at least one year." 8 U.S.C. § 1101(a)(43)(F). Subsection (G) refers to "a theft offense (including receipt of stolen property) or burglary offense for which the term of imprisonment [is] at least one year." 8 U.S.C. § 1101(a)(43)(G).

Originally, the government argued that Texas burglary qualified as an aggravated felony under the federal criminal code’s definition of crime of violence as defined at 18 U.S.C. § 16(b), which is known as the residual clause. However, Sessions v. Dimaya , ––– U.S. ––––, 138 S. Ct. 1204, 200 L.Ed.2d 549 (2018), issued after the government’s original argument, held that the residual clause of § 16(b) as incorporated into the INA’s definition of "aggravated felony" was unconstitutionally vague. In response, the government shifted its position. It now argues the Texas burglary statute constitutes a theft or burglary offense under 8 U.S.C. § 1101(a)(43)(G).³ But Pena challenges this position as well, claiming Texas burglary does not qualify as a theft offense or burglary offense.

In evaluating Pena’s argument, we must first determine the proper framework for our analysis. More specifically, we must decide whether to employ the "categorical approach" or the "modified categorical approach" in our analysis. Then, once we make that determination, we must apply the proper framework to consider...