USA. v. Escobar

• Decision Date: 13 July 2001
• Docket Number: ESCOBAR-RODRIGUE,DEFENDANT-APPELLANT,PLAINTIFF-APPELLEE,ROBERTO,ECHAVARRIA-ESCOBA,No. 00-10570,AK,00-10570
• Citation: 270 F.3d 1265
• Parties: (9th Cir. 2001) UNITED STATES OF AMERICA,, v. ROBERTOESCOBAR; AKA, BAUDILO ECHEVERIA; AKA, ROBERTO CAR
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1265

270 F.3d 1265 (9th Cir. 2001) UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
ROBERTO ECHAVARRIA-ESCOBAR, AKA, ROBERTO ESCOBAR; AKA, BAUDILO ECHEVERIA; AKA, ROBERTO CAR ESCOBAR-RODRIGUEZ, DEFENDANT-APPELLANT. No. 00-10570 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Submitted July 13, 2001^*
Filed October 18, 2001

Page 1266

Ronald C. Rachow, Assistant United States Attorney, Reno, Nevada, for the plaintiff-appellee.

Michael K. Powell, Esq., Office of the Federal Public Defender, Reno, Nevada, for the defendant-appellant.

Appeal from the United States District Court for the District of Nevada; Howard D. McKibben, District Judge, Presiding. D.C. No. CR-00-00080-HDM(VPC)

Before: Hall, Wardlaw, and Berzon, Circuit Judges.

Wardlaw, Circuit Judge

Roberto Echavarria-Escobar ("Echavarria") appeals his sentence of 46 months imprisonment for illegal re-entry into the United States following deportation and an aggravated felony conviction, in violation of 8 U.S.C. § 1326(a). He challenges the increase of his sentence by 16 levels pursuant to United States Sentencing Guideline ("U.S.S.G.") § 2L1.2(b) (1)(A), contending that because his prior theft offense sentence was suspended, it did not constitute an aggravated felony. We disagree. Like every other circuit court that has considered this question, we conclude that imposition of a sentence meeting the requirements of 8 U.S.C. § 1101(a)(43), even if later suspended, satisfies the requirements of 8 U.S.C. § 1326(b)(2). We also reject Echavarria's argument that the district court violated Apprendi v. New Jersey , 530 U.S. 466 (2000), by enhancing his sentence 16 levels without charging his previous aggravated felony in the indictment. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

I. BACKGROUND

On April 15, 1999, Echavarria was convicted of the felony offense of theft, in violation of Nevada Revised Statute ("NRS") 205.0832 and sentenced to a term of imprisonment of 12 to 32 months. His sentence was later suspended, and he was placed on probation not to exceed 36 months. Because Echavarria is not a citizen of the United States, he was detained by the United States Immigration and Naturalization Service ("INS") following

Page 1267

this felony conviction. He was deported to El Salvador on November 22, 1999.

On May 21, 2000, Echavarria was arrested in Reno, Nevada. Four days later, INS agents encountered Echavarria at the Washoe County Jail while conducting a routine jail inspection. During a June 3, 2000 interview, Echavarria admitted having been previously deported on November 22, 1999. He also admitted that he illegally entered the United States near Nogales, Arizona on May 16, 2000.

On June 14, 2000, the Federal Grand Jury in Reno, Nevada returned a single-count indictment against Echavarria. The indictment charged Echavarria with Illegal Re-entry of a Deported or Removed Alien, in violation of 8 U.S.C. § 1326. The indictment did not charge a prior aggravated felony conviction.

Echavarria appeared in the United States District Court for Nevada on August 16, 2000, at which time he pleaded guilty to the single-count indictment. Before accepting Echavarria's guilty plea, the judge explained that if the court, during sentencing, were to find that Echavarria committed an aggravated felony, his sentence would be enhanced 16 levels pursuant to U.S.S.G. § 2L1.2(b)(1)(A). Finding that Echavarria's guilty plea was voluntary and intelligent, the district court accepted the guilty plea and set sentencing for November 16, 2000.

Before sentencing, Echavarria made two objections to the findings set forth in the Presentence Report ("PSR"): (1) that he had neither been charged with, nor admitted, the existence of a prior aggravated felony; and (2) that pursuant to Apprendi, the statutory maximum sentence for his offense should be two years rather than twenty years. At sentencing, Echavarria abandoned his first objection, conceding that "the Government ha[d] met its burden with respect to the conviction for purposes of sentencing" and also that"[t]he certified copy of the conviction that . . . was supplied . . . establishe[d] its validity for purposes of sentencing." The district court overruled Echavarria's Apprendi objection, finding that "Apprendi did not apply to the facts of this case."

Beginning with a base offense level 8 as recommended in the PSR, the district court increased it by 16 levels, finding that Echavarria had committed a prior aggravated felony for theft. The court then decreased the offense level by three for acceptance of responsibility, and found that 21 was the correct offense level. The court further found a criminal history category of III based on a four point total, which placed Echavarria in a 46-57 month range. The court sentenced him to a term of incarceration of 46 months, 3 years supervised release, and assessed a $100 fine. Although the original judgment and conviction stated a conviction for a single count in violation of 8 U.S.C. § 1326(a) and (b)(2), we permitted the parties to file an amended Judgment and Conviction, which does not reference 8 U.S.C. § 1326(b)(2). See United States v. Rivera-Sanchez, 222 F.3d 1057, 1062 (9th Cir. 2000) ( Judgment and Conviction should only reflect a violation of 8 U.S.C. § 1326(a)).

II. PRIOR AGGRAVATED FELONY

A. Waiver

Echavarria argues for the first time on appeal that the sentence imposed for his Nevada state theft offense cannot constitute an aggravated felony for purposes of enhancing his present sentence under 8 U.S.C. § 1326(b)(2), because that sentence was suspended. Generally, we do not consider issues raised for the first time on appeal. Bolker v. Comm'r, 760 F.2d 1039, 1042 (9th Cir. 1985). There are, however, four exceptions to this rule, where: (1) there are exceptional circumstances why the issue was not raised in the

Page 1268

trial court; (2) new issues have become relevant while the appeal was pending because of change in the law; (3) the issue presented is purely one of law and the opposing party will suffer no prejudice as a result of the failure to raise the issue in the trial court; or (4) plain error has occurred and injustice might otherwise result. United States v. Robertson, 52 F.3d 789, 791 (9th Cir. 1994).

Conceding that he failed to raise this issue before the district court, Echavarria argues that the third exception applies because the district court erred in interpreting the words used in the sentencing guidelines and statutes. We agree that this exception applies. Because "[a] district court's construction and interpretation of the Sentencing Guidelines are legal determinations," United States v. MacDonald, 992 F.2d 967, 970 (9th Cir. 1993), we will review Echavarria's claim of sentencing error, notwithstanding his earlier failure to raise it.

B. Aggravated Felony

Echavarria claims that because the 1996 amendments to the United States Code ("U.S.C."), codified at Omnibus Consolidated Appropriations Act of 1997, Pub.L. 104-208, Div. C, § 321(a), 110 Stat. 3009-628, 1996 HR 3610 (September 30, 1996), omitted language referring to suspension of imprisonment, in 8 U.S.C. § 1101(a)(43), the Sentencing Guidelines' exclusive reference to 1101(a)(43) for the definition of "aggravated felony" now means that the government must prove that the defendant actually served a sentence of imprisonment of at least one year. See Note 1 of the Application notes to U.S.S.G. § 2L1.2. He finds further support for his argument in the fact that the Application Notes to the U.S.S.G. under § 2L1.2 were amended after the 1996 Amendments to the Immigration Code, see Guideline Manual, Appendix C, Amendment 562, yet Note 1 of the Application Notes to U.S.S.G. § 2L1.2 refers only to 8 U.S.C. § 1101(a)(43). Thus, Echavarria contends that when determining whether a defendant committed an aggravated felony as defined under U.S.S.G. § 2L1.2, a suspended sentence should not be considered part of the required term of imprisonment. We disagree.

The...