United States v. Cadena-Guerrero ( 1999 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________________
No. 98-51212
_______________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LUIS GILBERTO CADENA-GUERRERO,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Western District of Texas
(EP-98-CR-1019)
_________________________________________________________________
December 20, 1999
Before JONES, DeMOSS, and DENNIS, Circuit Judges.
PER CURIAM:*
Appellant Cadena pled guilty to illegal re-entry after
deportation and was sentenced to 46 months in prison with three
years of non-reporting supervised release. Following his guilty
plea, Cadena filed a motion for downward departure pursuant to
U.S.S.G. § 2L1.2, application note 5. The district court denied
the departure motion and sentenced Cadena to 46 months
imprisonment. Cadena has appealed.
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
This court reviews the district court’s application and
interpretation of the Sentencing Guidelines de novo and its
findings of fact for clear error. United States v. Montoya-Ortiz,
7 F.3d 1171, 1179 (5th Cir. 1993). However, this court has
jurisdiction to review a defendant’s challenge to a sentence only
if it was imposed in violation of law, imposed as a result of an
incorrect application of the Guidelines, resulted from an upward
departure, or was unreasonably imposed for an offense not covered
by the sentencing guidelines. United States v. DiMarco, 46 F.3d
476, 477 (5th Cir. 1995)(citing 18 U.S.C. § 3742). “The imposition
of a lawful sentence coupled with the decision not to depart from
the guidelines provides no ground for relief.” Id. (citing United
States v. Miro, 29 F.3d 194, 198-99 (5th Cir. 1994)). In this
case, jurisdiction lies only if the sentencing court’s refusal to
depart downward resulted from a violation of law or misapplication
of the Guidelines. Id. In addition, a refusal to depart downward
is a violation of law only if the court mistakenly assumes that it
lacks authority to depart. United States v. Burleson, 22 F.3d 93,
95 (5th Cir. 1994). Furthermore, “something in the record must
indicate that the district court held such an erroneous belief.”
United States v. Landerman, 167 F.3d 895, 899 (5th Cir. 1999). In
this case, the district court indicated that it lacked authority to
depart downward, and this court has jurisdiction to review whether
the refusal was proper.
2
The base offense level for the crime of illegal reentry
is eight. U.S.S.G. § 2L1.2(a). But Cadena’s base level was
increased by 16 levels since Cadena had reentered the United States
after being deported for committing an aggravated felony. In
October 1997, Cadena had been convicted of possession with intent
to distribute marijuana, which is an aggravated felony under 8
U.S.C. § 1101(a)(43). Cadena received a 16 month suspended
sentence for the possession offense.
Application note 5 of § 2L1.2 provides that if:
(A) the defendant has previously been
convicted of only one felony offense; (B) such
offense was not a crime of violence or
firearms offense; and (C) the term of
imprisonment imposed for such offense did not
exceed one year, a downward departure may be
warranted based on the seriousness of the
aggravated felony.
Cadena does not dispute the 16-level enhancement since he admits he
was deported after being convicted for an aggravated felony. The
Government does not dispute that the felony was a single, non-
violent offense. Thus, the only issue on appeal is whether a
suspended sentence for an aggravated felony constitutes a “term of
imprisonment imposed.”
Although this is an issue of first impression in this
circuit, the answer is easy. Application note 5 does not define
“term of imprisonment imposed”, nor does it explicitly incorporate
the definition set out in § 1101(a)(48)(B). Cadena’s argument
rests on application notes and amendments to the guidelines alone,
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which, he asserts, show that “term of imprisonment” should be read
as term of imprisonment served as opposed to imposed.
The government contends, however, that the meaning of
“term of imprisonment imposed” is determined by 8 U.S.C. §
1101(a)(48)(B), which provides:
Any reference to a term of imprisonment or a
sentence with respect to an offense is deemed
to include the period of incarceration or
confinement ordered by a court of law
regardless of any suspension of the imposition
or execution of that imprisonment or sentence
in whole or in part.
Since § 2L1.2 defines aggravated felony in relation to §
1101(a)(43), the Government argues that the definition of “term of
imprisonment” set out in § 1101(a)(48)(B) also applies. As a
result, a term of imprisonment includes a period of incarceration
“regardless of any suspension of the imposition or execution of
that sentence.”
The government’s position was essentially adopted by this
court in United States v. Banda-Zamora, which concluded that
Ҥ 1101 offers a series of definitions applicable to the entire
chapter [such that] the definition in § 1101(a)(48)(B) applies
recursively” to the other definitions in § 1101(a)(43). 178 F.3d
728, 730 (5th Cir. 1999). Thus, “[a]ny reference to a term of
imprisonment ... with respect to an offense” refers to any offense
defined in chapter § 1101. As noted, § 2L1.2 defines aggravated
felony in relation to § 1101(a)(43), and Cadena admits that his
prior possession charge falls within the § 1101(a)(43) definition.
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Since application note 5 refers to a term of imprisonment imposed
with respect to an offense defined by § 1101(a)(43),
§ 1101(a)(48)(B) applies. As a result, the “term of imprisonment
imposed” in § 2L1.2 includes suspended sentences (i.e., the
sentence imposed regardless of any suspension of the imposition or
execution of that imprisonment).
The Tenth Circuit has previously adopted this reasoning.
See United States v. Chavez-Valenzuela, 170 F.3d 1038 (10th Cir.
1999). And before the amendment of the guidelines on which Cadena
relies, other circuit courts which addressed “term of imprisonment”
under of § 2L1.2 took it to mean the sentence imposed, regardless
of suspensions, rather than the time actually served. See United
States v. Galicia-Delgado, 130 F.3d 518, 520 (2d Cir. 1997); United
States v. Ramos-Garcia, 95 F.3d 369, 371-72 (5th Cir. 1996), cert.
denied, 519 U.S. 1083 (1997); United States v. Cordova-Beraud, 90
F.3d 215, 218-19 (7th Cir. 1996). The changes made by the 1996
amendments do not suggest that the legislature meant to replace
this understanding of the term.
Cadena is not entitled to a downward departure under §
2L1.2 if a term of imprisonment of more than one year was imposed
for his prior aggravated felony. Since § 2L1.2 defines aggravated
felony in relation to § 1101(a)(43), and since § 1101(a)(48)(B)
applies recursively, “term of imprisonment imposed” includes
suspended sentences. Accordingly, the sentence is AFFIRMED.
5