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United States v. Vicente Cuevas-Lopez
Citation: 934 F.3d 1056Docket: 17-10438
Court: Court of Appeals for the Ninth Circuit; August 19, 2019; Federal Appellate Court
Original Court Document: View Document
The United States Court of Appeals for the Ninth Circuit affirmed the sentence of Vicente Cuevas-Lopez for attempted illegal reentry after deportation, in violation of 8 U.S.C. § 1326. The court upheld the application of a ten-level enhancement under U.S.S.G. § 2L1.2(b)(3)(A), which applies to defendants who have been deported and subsequently commit a felony offense with a sentence of five years or more. Cuevas-Lopez had been sentenced to two consecutive 3.5-year terms for second-degree burglary on the same day. The district court aggregated these sentences to seven years, relying on the 'single sentence rule' from U.S.S.G. § 4A1.2(a)(2), which determines whether to treat multiple prior sentences as one based on factors like intervening arrests and the timing of the sentences. Cuevas-Lopez, who did not object during sentencing, contended that the district court incorrectly applied this rule, but the panel concluded it was appropriate. Judge Ikuta dissented, arguing that the plain language of the Sentencing Guidelines does not support treating Cuevas-Lopez's prior sentences as constituting a felony offense with a five-year minimum sentence. The Sentencing Reform Act of 1984 established guiding factors for federal district courts in sentencing decisions and created the United States Sentencing Commission to establish sentencing guidelines. Initially binding, the guidelines were rendered effectively advisory by the Supreme Court in United States v. Booker. Nevertheless, the Guidelines Manual serves as the starting point for sentencing, with ranges determined by the seriousness of the offense and the defendant's criminal history. Cuevas-Lopez, a Mexican citizen, was deported multiple times from 2004 to 2015 and was charged with attempted illegal reentry in 2017 after an unsuccessful attempt to return to the U.S. He pled guilty, and a Pre-Sentence Report (PSR) recommended a base offense level of eight under guideline 2L1.2(a) for illegal reentry. The PSR included a ten-level enhancement due to a felony conviction following his deportation, where he received consecutive sentences for two burglaries resulting in a cumulative sentence of over five years. The PSR treated these consecutive sentences as a single seven-year sentence, triggering the enhancement and resulting in an adjusted offense level of 18. A three-level downward adjustment for acceptance of responsibility brought the final offense level to 15, placing Cuevas-Lopez in criminal history category V. This resulted in a sentencing range of 37 to 46 months. Without the aggregation of the burglary sentences, the enhancement would have been eight levels, leading to an offense level of 13 and a range of 30 to 37 months. At the sentencing hearing, the Government supported the Presentence Report (PSR) recommendation, asserting that Cuevas-Lopez’s base offense level was appropriately enhanced by ten levels due to his seven-year consecutive state sentence for two second-degree burglary counts from a single indictment. The district court accepted this calculation without objection from Cuevas-Lopez, sentencing him to 37 months in prison and three years of supervised release. On appeal, Cuevas-Lopez contends that the single sentence rule does not apply to 2L1.2(b)(3) enhancements, arguing that his prior 3.5-year sentences should not have been aggregated for the Guidelines range determination. Since Cuevas-Lopez did not object in the district court, the appeal is subject to plain error review, unless it presents a legal question that would not cause prejudice to the opposing party. The Government argues that this 'pure question of law' exception is inconsistent with Supreme Court interpretations of Federal Rule of Criminal Procedure 52(b). However, the court concludes that it need not resolve the standard of review issue, as it would affirm the district court's decision under either de novo or plain error review. The court finds that the district court correctly interpreted the Guidelines Manual in applying the single sentence rule to 2L1.2(b) enhancements. Additionally, the court emphasizes that while Guidelines are advisory, a district court must accurately calculate the recommended Guidelines sentence and justify any departures from it, as failure to do so constitutes procedural error. The Supreme Court identifies three types of text in the Guidelines Manual, each authored by the Sentencing Commission: 1. **Guideline Provisions**: These provide direction on the type and extent of punishment. 2. **Policy Statements**: These address the application of guidelines or aspects of sentencing to further the purposes of the Sentencing Reform Act. 3. **Commentary**: This accompanies guidelines and policy statements, serving to interpret guidelines, suggest circumstances for departures, and provide background information. Modifications to guideline provisions require a statement of reasons from the Sentencing Commission and must adhere to statutory parameters. The interpretation of the Sentencing Guidelines relies on standard statutory interpretation tools, focusing primarily on the text and structure of the provisions and considering the Commission’s authoritative commentary unless it conflicts with the Constitution or federal statutes. Policy statements are also binding when they interpret substantive guidelines without conflict. Chapter Two of the Guidelines Manual pertains to offense conduct, specifically addressing attempted illegal reentry under guideline 2L1.2, which sets a base offense level of eight. Enhancements based on prior convictions range from two to ten levels, influenced by the type of convictions and the length of sentences. Specific subsections determine the size of enhancements based on the offense type and the length of prior sentences. Subsection (b)(3) enhances Cuevas-Lopez’s base offense level based on specific criminal conduct occurring post-deportation. The enhancement specifies increases in offense levels for felony convictions based on sentence length: 10 levels for sentences of five years or more, 8 levels for two years or more, 6 levels for sentences exceeding one year and one month, 4 levels for any other felony, and 2 levels for three or more misdemeanor convictions involving violence or drug trafficking. Subsection 2L1.2(b)(2) parallels this but pertains to conduct before deportation. The 2016 Guidelines Manual is in use, though an amendment in 2018 clarified that the timing of criminal conduct, rather than conviction, determines enhancement applicability under 2L1.2(b)(2). Cuevas-Lopez argues that “a conviction” in the enhancement language should prevent the aggregation of consecutive sentences. Despite this argument, the district court correctly aggregated his two 3.5-year sentences based on the single sentence rule outlined in Chapter Four of the Guidelines Manual. This rule defines "prior sentence" and dictates that multiple sentences may be treated as a single sentence if they meet specific criteria regarding intervening arrests or if they are part of the same charging instrument or imposed on the same day. Prior sentences classified under U.S.S.G. 4A1.2(a)(2) may be treated as a single sentence for sentencing enhancements. Specifically, if concurrent sentences are imposed, the longest sentence is used; if consecutive, the aggregate sentence is considered. In the case of Cuevas-Lopez, a ten-level enhancement was applied based on consecutive 3.5-year sentences instead of an eight-level enhancement applicable to concurrent sentences. Cuevas-Lopez argues that the single sentence rule should not apply to the 2L1.2 enhancements, citing Application Note 2, which defines "sentence imposed" but does not reference subsection (a) of 4A1.2, where the single sentence rule is found. He interprets this omission as intentional, suggesting the rule is excluded from 2L1.2(b). However, the court disagrees, asserting that the absence of a reference to subsection (a) does not imply exclusion. Other application notes relevant to the enhancement, particularly Application Note 3 to 2L1.2, indicate that criminal history points, which inform the application of enhancements, may involve aggregated sentences under the single sentence rule. Thus, the treatment of prior convictions for 2L1.2(b) enhancements is influenced by this rule, reinforcing its applicability in this context. Application Note 3 to U.S.S.G. 2L1.2 clarifies that only convictions counted separately under the single sentence rule (4A1.2(a)(2)) should be considered for certain subsections, indicating that the Sentencing Commission intended for multiple convictions to sometimes be treated as one. This assumption necessitates the application of the single sentence rule to enhance the determinations under 2L1.2(b)(3). Application Note 4 supports this view by stating that if an illegal reentry offense and another felony were sentenced together, the illegal reentry should be used for subsection (b)(1) enhancements, while the felony offense should be used for subsection (b)(3) enhancements, provided both independently warrant criminal history points. Furthermore, the Sentencing Commission's rationale for the 2016 amendment to 2L1.2 reinforces this approach, as the amendment shifted from a complex categorical analysis of convictions to a simpler sentence-based model for determining enhancements. The Commission's guidance noted parallels between the new model and the criminal history scoring in Chapter Four, implying that the seriousness of prior offenses, as indicated by sentence length, aligns with the single sentence rule's application. The definition of "sentence imposed" in amended 2L1.2 is consistent with that in Chapter Four of the Guidelines Manual. Amendment 802 indicates that the Sentencing Commission did not restrict its explanation to specific provisions of Chapter Four, implying the inclusion of the single sentence rule, especially in the context of criminal history rules applicable to 2L1.2 enhancements. The Commission explicitly noted the importance of distinguishing between illegal reentry offenses and other felonies, allowing the illegal reentry offense to count under subsection (b)(1) while the other felony counts under subsection (b)(3). This distinction aligns with the Commission’s intent to apply the single sentence rule to 2L1.2, particularly in light of the 2016 addition of Application Note 4. The Commission aimed to simplify the assessment of a defendant's prior offenses by transitioning to an amended enhancements approach, which emphasizes the seriousness of prior conduct through the aggregation of sentences only when ordered to run consecutively. The ability of judges to determine whether sentences run concurrently or consecutively further supports the application of the single sentence rule to 2L1.2(b)(2) and (b)(3) enhancements. Ultimately, even if there is ambiguity regarding the Commission's intent, the need to prevent circuit splits supports the application of the single sentence rule in this context. The court emphasizes its reluctance to create conflicts with other circuit rulings, aiming to avoid unnecessary splits in legal interpretation. The Fifth Circuit's recent decision in *United States v. Garcia-Sanchez* establishes that the single sentence rule applies to § 2L1.2(b) under the 2016 Guidelines Manual, supporting the district court's interpretation in the current case. The Fifth Circuit's reasoning draws on Amendment 802, particularly its guidance on 'Accounting for Other Prior Convictions' and 'Excluding Stale Convictions', which aligns the single sentence rule with criminal history rules applicable to § 2L1.2(b). The court also referenced the Fourth Circuit's ruling in *United States v. Martinez-Varela*, which supported aggregating sentences for sentencing enhancements, reinforcing the applicability of the single sentence rule. The Ninth Circuit has not previously addressed this specific sentencing question but finds the principles in both *Garcia-Sanchez* and *Martinez-Varela* consistent with its own case law that treats prior convictions similarly across § 2L1.2 and the criminal history categories outlined in Guidelines § 4A1.1-2. Chapter 4 and the earlier version of § 2L1.2 are aligned in their intent to adjust sentencing based on a defendant's criminal history. The court in United States v. Galicia-Delgado established that definitions from Chapter Four are pertinent when interpreting § 2L1.2. The court adopted the Fifth Circuit's application of the single sentence rule to enhancements under § 2L1.2(b)(2) and (b)(3). Previous cases, such as Ortiz-Gutierrez, applied this rule to enhancements related to aggravated felonies, despite § 2L1.2 not cross-referencing the relevant sections of Chapter Four. Cuevas-Lopez's contention for leniency was dismissed, as the rule of lenity only applies in cases of severe ambiguity, which was not present here. Consequently, the court upheld the application of the single sentence rule in Cuevas-Lopez's sentencing. Dissenting, Judge Ikuta argued that the district court incorrectly calculated the Guidelines range for Cuevas-Lopez at 37 to 46 months instead of the appropriate 30 to 37 months. This error stemmed from the district court applying an unrelated section of the Guidelines that did not reflect the actual sentencing criteria for Cuevas-Lopez, who had a maximum sentence of three and a half years for his prior convictions. The enhancement applied was thus inappropriate, leading to a higher sentence than warranted. The district court's sentencing of Cuevas-Lopez at the lower end of the Guidelines range raises the possibility that an accurate calculation of the Guidelines could have led to a different sentence. Citing United States v. Munoz-Camarena, it is emphasized that an improper calculation of the Guidelines range constitutes a significant procedural error, necessitating remand for resentencing. The court must start all sentencing by correctly calculating the applicable Guidelines range, as established in Gall v. United States. The interpretation of the Sentencing Guidelines relies on standard statutory interpretation methods, with authoritative commentary unless it contradicts the Constitution or federal statutes. For Cuevas-Lopez's case, the applicable offense guideline is 2L1.2, related to unlawful reentry. The calculation begins with a Base Offense Level of eight points for violations of 18 U.S.C. § 1326. The court then assesses Specific Offense Characteristics, which may enhance the Base Offense Level. A ten-level enhancement is required if the defendant has a felony conviction resulting in a sentence of five years or more, while an eight-level enhancement applies for felony convictions resulting in a sentence of two years or more. A felony conviction (excluding illegal reentry) with a sentence of five years or more results in a 10-level increase under Section 2L1.2(b)(3)(A). If the felony sentence is two years or more, an 8-level increase applies instead. In the case of Cuevas-Lopez, he received a three-and-a-half-year sentence for second-degree burglary. Although he had a second conviction for the same offense, the text of subsection (3)(A) prohibits aggregating sentences from multiple convictions, as it specifically refers to "a conviction" and "the sentence." Consequently, subsection (3)(B) applies, warranting only an 8-level increase. The commentary on the Unlawful Reentry Offense guideline supports this interpretation, clarifying that "sentence imposed" refers to a three-and-a-half-year sentence without aggregation of multiple convictions. The definition of "sentence of imprisonment" in §4A1.2 indicates it encompasses the maximum sentence imposed, excluding any suspended portions. Proper calculations of the sentence length consider only the actual time served or the maximum stated in the case of indeterminate sentences. Criminal history points are determined by the sentence pronounced by the court, not by the actual time served. A probation sentence is treated as a sentence under §4A1.1(c) unless it includes a condition of at least sixty days of imprisonment. The term “sentence of imprisonment” refers to the maximum sentence imposed, excluding any suspended portions, and must involve actual imprisonment to qualify. Each reference to “sentence of imprisonment” pertains to a single conviction. The Guidelines are interpreted strictly according to their plain language, as established by case law. In the case of Cuevas-Lopez, the ten-level enhancement under subsection (3)(A) does not apply because he lacks a felony conviction with a sentence of five years or more; his two sentences of three and a half years each do not meet this criterion. The majority's reliance on the “Single Sentence Rule” from Chapter 4 of the Guidelines, which addresses whether multiple sentences should be counted separately or as one, is misplaced in this context. Prior sentences are generally counted separately unless specific conditions apply, such as intervening arrests or sentences arising from the same charging instrument or imposed on the same day. Chapter 4 defines "prior sentence" as any sentence given after a finding of guilt. The Single Sentence Rule states that multiple prior sentences are counted separately if there is an intervening arrest; otherwise, they are treated as a single sentence if they arise from the same charging document or were imposed on the same day. The majority opinion asserts that the term "sentences imposed" in subsection (3)(A) of the Unlawful Reentry Offense guidelines should be interpreted to align with "prior sentence" in the Single Sentence Rule. Consequently, it concludes that Cuevas-Lopez's two second-degree burglary convictions should be counted as one conviction, with the two separate sentences of three and a half years each also counted as a single sentence of five years or more. However, the majority's analysis is criticized for lacking any reference in the Guidelines that would allow for the application of the Single Sentence Rule in this context or for equating "sentence imposed" with "prior sentence." It is pointed out that a definition that specifies a term's meaning excludes any other interpretation. The majority's dismissal of Cuevas-Lopez's argument—suggesting that the absence of a statement regarding the applicability of the Single Sentence Rule implies its acceptance—is deemed unfounded. The majority further attempts to support its position by citing Application Note 3 of the Unlawful Reentry Offense guidelines, indicating the Sentencing Commission's intent for the Single Sentence Rule to apply to subsection (3)(A), although this reasoning is described as convoluted and unclear. The excerpt focuses on the application of the U.S. Sentencing Guidelines, specifically U.S.S.G. § 2L1.2 and the Criminal History Category guidelines, in determining criminal history points. It highlights that only convictions which received points under the Criminal History Category guidelines (4A1.1(a), (b), and (c)) should be counted. The majority opinion references subsection 4A1.1(e), which pertains to adding a point for prior sentences related to violent crimes that did not receive points due to being treated as a single sentence. However, this subsection is not included in Application Note 3, which governs the counting of convictions for the purposes of the Unlawful Reentry Offense guidelines. The majority's reasoning is critiqued for relying on a selective interpretation of the guidelines, suggesting that the Single Sentence Rule should apply to Cuevas-Lopez’s multiple convictions. It argues that the instruction regarding aggregated sentences for violent crimes is irrelevant to determining if Cuevas-Lopez's two second-degree burglary convictions constitute “a conviction” for which a single sentence of five years or more was imposed under subsection 3(A). Furthermore, it clarifies that Application Note 3 indicates that only those misdemeanors counted separately under the Single Sentence Rule should be considered, and the majority's claims about applying this rule to felony convictions lack textual support in the guidelines. The language from Application Note 3 suggests that the Sentencing Commission intentionally chose not to apply the Single Sentence Rule to felony counts as it did for multiple misdemeanors, indicating a clear understanding of how to do so. The express overt-act requirement in 22 other conspiracy statutes shows Congress's capacity to impose such requirements. The majority's reliance on textual arguments related to irrelevant Guidelines sections lacks support and is dismissed. Additionally, the majority's interpretation of the 2016 amendment to Section 2L1.2 is flawed. Prior to the amendment, the Special Offense Characteristics enhancements were defined by reference to federal generic offenses, necessitating the use of the categorical approach from Taylor v. United States for prior convictions. This approach was criticized for its complexity, prompting the Sentencing Commission to adopt a simpler model based on the length of sentences imposed for prior offenses in 2016. The majority erroneously claims that references to Chapter Four of the Guidelines imply the incorporation of the Single Sentence Rule into the Unlawful Reentry Offense guideline, despite the absence of such a reference in the Amendment. Consequently, there is no conflict between the Amendment and the Guidelines, and straying from the text would only reinforce the conclusion against applying the Single Sentence Rule in this context. The Commission indicated that the length of a sentence reflects the court's evaluation of the seriousness of the underlying offense, using it as a proxy for crime severity. However, aggregating sentences for multiple offenses, such as two second-degree burglaries with three-year sentences each, does not equate in seriousness to a single armed robbery with a six-year sentence, which undermines the Commission's rationale. The majority's reliance on 18 U.S.C. 3584 to assert that the Single Sentence Rule captures the seriousness of prior offenses lacks merit, as this statute does not clarify how to interpret the Unlawful Reentry Offense guidelines. The distinction between determining a total sentence under 3584 and assessing whether a single offense warrants enhancement is emphasized. According to the plain language of the Guidelines, Cuevas-Lopez lacks a qualifying felony conviction with a sentence of five years or more, thus the Guidelines' wording is clear and should be upheld. The majority acknowledges the absence of ambiguity in the Guidelines yet chooses not to apply their explicit provisions, suggesting that Cuevas-Lopez should receive a Guidelines range of 30 to 37 months instead of the incorrectly calculated 37 to 46 months by the district court. The author expresses dissent on this interpretation.