USA v. Ibarra, IBARRA-GALIND

• Decision Date: 27 March 2000
• Docket Number: No. 99-30090,D,IBARRA-GALIND,99-30090
• Citation: 206 F.3d 1337
• Parties: (9th Cir. 2000) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. ERNESTOefendant-Appellant
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1337

206 F.3d 1337 (9th Cir. 2000)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. ERNESTO IBARRA-GALINDO, Defendant-Appellant.

No. 99-30090

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted August 12, 1999

Filed March 27, 2000

COUNSEL: Michael Filipovic, Assistant Federal Public Defender, (argued) Seattle, Washington, for the defendant-appellant.

Helen J. Brunner, (argued) Assistant United States Attorney, Seattle, Washington, for the plaintiff-appellee.

Appeal from the United States District Court for the Western District of Washington; Thomas S. Zilly, District Judge, Presiding. D.C. No. CR-98-00698-TSZ

Before: William C. Canby, Jr., Melvin Brunetti, and Diarmuid F. O'Scannlain, Circuit Judges.

Opinion by Judge O'Scannlain; Dissent by Judge Canby

O'SCANNLAIN, Circuit Judge:

We must decide whether a state felony drug crime, which would not be a felony under federal law, nevertheless may constitute an "aggravated felony" for purposes of enhancing a sentence for illegally reentering the United States.

I

Ernesto Ibarra-Galindo, a native and citizen of Mexico, appeals the district court's decision to apply, pursuant to United States Sentencing Guidelines ("U.S.S.G.") S 2L1.2(b) (1)(A), a sixteen-level enhancement to his sentence for illegally reentering the United States after having been deported for an aggravated felony. See 8 U.S.C. 1326(a). We review the district court's interpretation of the Sentencing Guidelines de novo. See United States v. Bailey, 139 F.3d 667, 667 (9th Cir. 1998).

Ibarra-Galindo has been deported from the United States four times. Prior to his last deportation in May 1997, he pled guilty to possessing cocaine (approximately 0.4 grams) in violation of Washington State law. He was convicted and imprisoned for two months. Ibarra-Galindo's conviction was a felony under Washington law, but his offense would have amounted only to a misdemeanor under federal law. See 21 U.S.C. S 844(a).

In June 1998, Ibarra-Galindo was again in jail in Washington State, this time for stealing a car. When the Immigration and Naturalization Service ("INS") found him there, he was charged with illegally reentering the United States in violation of 8 U.S.C. S 1326(a). He pled guilty to the charge on November 12, 1998, but stipulated as subject to dispute the applicability of the sixteen-level enhancement to his sentence under U.S.S.G. S 2L1.2(b)(1)(A). Although Ibarra-Galindo and the Probation Office expressed their views that U.S.S.G. S 2L1.2(b)(1)(A) was inapplicable, the district court held that the enhancement applied to Ibarra-Galindo's sentence and, after adjusting his total offense level down to 11, sentenced him to 18 months in prison (with credit for time served). Ibarra-Galindo then filed this appeal, and we now affirm his sentence.

II

The Sentencing Guidelines' scheme for calculating the punishment for illegal reentry into the United States borrows definitions from several statutes. According to U.S.S.G. S 2L1.2, the base offense level for illegal reentry is eight; under subsection 2L1.2(b)(1), that level must be increased by sixteen levels "[i]f the defendant previously was deported after a criminal conviction . . . for an aggravated felony." Application Note 1 appended to S 2L1.2 indicates that " `[a]ggravated felony,' is defined at 8 U.S.C. S 1101(a)(43)." The government relies here on that definition's inclusion of "illicit trafficking in a controlled substance . . . including a drug trafficking crime (as defined in section 924(c) of Title 18)." 8 U.S.C. S 1101(a)(43)(B). According to 18 U.S.C. S 924(c)(2), " `drug trafficking crime' means any felony punishable under the Controlled Substances Act (21 U.S.C. 801 et seq.) . . . ." Finally, under the Controlled Substances Act, a "felony" is "any Federal or State offense classified by applicable Federal or State law as a felony," 21 U.S.C. S 802(13), and possession of 0.4 grams of cocaine is punishable as a misdemeanor, see id. at S 844(a).

Ibarra-Galindo argues that a state drug crime that would amount merely to a misdemeanor under federal law cannot constitute an "aggravated felony" within this definitional scheme, regardless of whether the crime is defined under state law as a "misdemeanor" or a "felony." The crux of his position is that such a crime cannot be a "drug trafficking crime" as defined by 18 U.S.C. S 924(c)(2) because it is not punishable under the Controlled Substances Act as a felony. In short, Ibarra-Galindo contends that, within the phrase "felony punishable under the Controlled Substances Act," "Controlled Substances Act" modifies the meanings of both the word "felony" and the word "punishable."

We cannot agree. First, that is not how S 924(c)(2) is written. If Congress had intended the meaning advanced by Ibarra-Galindo, it would have most naturally referred to offenses "punishable as felonies under the Controlled Substances Act," but it did not. It is well established that, when one interpretation of a statute or regulation obviously could have been conveyed more clearly with different phrasing, the fact that the authors eschewed that phrasing suggests, ceteris paribus, that they in fact intended a different interpretation. See, e.g., Merchants Home Delivery Serv., Inc. v. Frank B. Hall & Co., 50 F.3d 1486, 1492 (9th Cir. 1995); United States v. Rivera, 996 F.2d 993, 995 (9th Cir. 1993).

Second, we have noted before that"[s]ection 924(c)(2) of Title 18 . . . defines `drug trafficking crime' broadly." United States v. Garcia-Olmedo, 112 F.3d 399, 400 (9th Cir. 1997). Hence, although we have not had occasion to do so when the crime at issue would have amounted to a felony under state but not federal law, we have at least twice before held that the phrase "any felony punishable under the Controlled Substances Act" is to be read as comprising two independent elements: The offense must "(a) [be] punishable under the Controlled Substances Act and (b) qualify as a felony." Id.; see also United States v. Zarate-Martinez, 133 F.3d 1194, 1200 (9th Cir. 1998). We are bound by precedent to reject, therefore, Ibarra-Galindo's premise that, for purposes of S 924(c)(2), the term "felony" refers only to offenses criminalized by the Controlled Substances Act as felonies.

Moreover, we agree with the six other circuits that have addressed this issue that the term "felony" as used within S 924(c)(2) refers to crimes denominated as felonies under either federal or state law. See United States v. Simon, 168 F.3d 1271, 1272 (11th Cir. 1999); United States v. HinojosaLopez, 130 F.3d 691, 694 (5th Cir. 1997); United States v. Briones-Mata, 116 F.3d 308, 309 (8th Cir. 1997); United States v. Cabrera-Sosa, 81 F.3d 998, 1000 (10th Cir. 1996); United States v. Restrepo-Aguilar, 74 F.3d 361, 364-66 (1st Cir. 1996); United States v. Polanco, 29 F.3d 35, 38 (2d Cir. 1994). Application Note 1 appended to U.S.S.G. S 2L1.2 supports the conclusion that federal and state felony convictions are to be considered equally relevant. See Stinson v. United States, 508 U.S. 36, 38 (1993) ("[C]ommentary in the Guidelines Manual that interprets or explains a guideline is authoritative . . . ."). It indicates that "any federal, state, or local offense punishable by imprisonment for a term exceeding one year" is a felony for the purposes of this section.¹ U.S.S.G. S 2L1.2 n.1 (1997). The conclusion is further bolstered by the Controlled Substances Act itself, which stipulates that, for purposes of the Act, "[t]he term `felony' means any Federal or State offense classified by applicable Federal or State law as a felony." 21 U.S.C. S 802(13) (emphasis added).

Even if, arguendo, the text of the Guidelines and statutes to which it refers did not compel our conclusion, our construction also appears to advance the policies behind the Sentencing Guidelines. "In measuring the seriousness of a defendant's criminal record, the Guidelines operate on the foundational premise that a defendant's history of criminal activity in violation of state law is to be treated on a par with his history of crimes committed in violation of federal law." Restrepo-Aguilar, 74 F.3d at 365. Hence, we may infer that the Sentencing Commission intended with U.S.S.G.S 2L1.2 to affix greater weight to the fact that a defendant has violated what the relevant jurisdiction declares to be a "felony" than to the fact that the federal government demarcates felonies and misdemeanors on a different basis than the state does. Our holding that both state and federal felonies amount to a "felony" for purposes of S 924(c)(2) advances this policy.

III

Ibarra-Galindo argues that we should ignore the plain meaning of the text of 18 U.S.C. S 924(c)(2) and deviate from the unanimous interpretation of our sister circuits because the Board of Immigration Appeals ("BIA") has held, for the purposes of defining "aggravated felony" in a wholly different context, that the term "felony" in S 924(c)(2) refers to federal felonies only. See In re L-G-, No. A26-025-339, 1995 WL 582051 (BIA Sept. 27, 1995). The BIA's decision in L-Gaddressed the eligibility of aliens for asylum and withholding of deportation under 8 U.S.C. SS 1158 and 1253(h). "That the BIA was persuaded by some of the policies undergirding deportation and asylum determinations to interpret`aggravated felony' as excluding state-classified felonies punishable only as misdemeanors under federal law does not convince us that Congress, in creating the aggravated felony sentence enhancement, or the Sentencing Commission, in implementing it, intended the same result." Restrepo-Aguilar, 74 F.3d at 366; cf. United States v. Pornes-Garcia, 171 F.3d 142, 147-48 (2d Cir. 1999) (distinguishing the policies underlying that court's decision to follow L-Gin the context of asylum eligibility from the policies underlying its decision regarding the meaning of "aggravated felony" for purposes of U.S.S.G. S 2L1.2(b)(1)(A)).² We decline...