HOLLOWAY, Circuit Judge.
Defendant-Appellant Raul Rosales-Garcia (Rosales) pled guilty to one count of illegal reentry in violation of 8 U.S.C. § 1326 and was sentenced to a term of imprisonment of 37 months. On appeal Mr. Rosales challenges his sentence, alleging that the district court incorrectly applied the Sentencing Guidelines. We agree. We
USSG § 2L1.2 is the Sentencing Guidelines provision applicable to defendants who illegally reenter the country in violation of 8 U.S.C. § 1326. The sentencing scheme embodied in § 2L1.2 imposes, via enhancements to the defendant's base offense level, more severe punishment for defendants who have committed serious prior crimes. A drug trafficking felony is enumerated as one such predicate offense. Depending on the length of the "sentence imposed" for the earlier drug trafficking felony, the defendant is subject to a 12- or 16-level enhancement on his illegal reentry sentence. If the "sentence imposed" for the earlier drug trafficking crime exceeded 13 months, the defendant is subject to the 16-level enhancement set out in § 2L1.2(b)(1)(A).
The sole question posed before us on appeal is whether the 16-level enhancement in USSG § 2L1.2(b)(1)(A) applies to a defendant whose sentence for an earlier drug trafficking felony was made longer than 13 months after the defendant was deported and committed the base offense of illegal reentry.
The relevant facts are undisputed and uncomplicated. Mr. Rosales was convicted of a state drug trafficking felony in 2008 and sentenced to 90 days' state imprisonment and 3 years of probation. Mr. Rosales was deported and then illegally reentered the country, violating the terms of his state probation and 8 U.S.C. § 1326. Federal law enforcement arrested Mr. Rosales shortly after he illegally reentered the country. Mr. Rosales's probation for the earlier state drug offense was revoked by a Utah state court as a result of his illegal reentry. Upon revocation of probation, Mr. Rosales was sentenced in state court to a term of imprisonment of 1 to 15 years on his prior state drug felony. After serving his state drug sentence, Mr. Rosales was released into federal custody and prosecuted in federal court for his illegal reentry. Mr. Rosales agreed to plead guilty to the federal charge as part of the District of Utah's fast-track program. Accordingly, the United States Probation Office prepared a Presentence Report ("PSR") before Mr. Rosales entered his guilty plea.
The PSR recommended that Mr. Rosales's base offense level be enhanced by 16 levels pursuant to USSG § 2L1.2(b)(1)(A). During his sentencing hearing and with the prosecution's permission, Mr. Rosales objected to the 16-level enhancement. The government alleged that Mr. Rosales's sentence upon revocation of his state probation constituted a prior drug trafficking felony for which the sentence imposed exceeded 13 months. Mr. Rosales contended that application of the 16-level enhancement did not comport with the Sentencing Guidelines for the sole reason that the "sentence imposed" did not exceed 13 months at the time he committed the base offense of illegal reentry.
The district court rejected Mr. Rosales's argument and applied the 16-level enhancement as recommended in the PSR, resulting in an advisory Guidelines range of 37 to 46 months. The district judge ultimately sentenced Mr. Rosales to a prison term of 37 months. If the district court had applied the 12-level enhancement under § 2L1.2(b)(1)(B) instead of the 16-level enhancement, as Mr. Rosales says it should have, the Guidelines range would have been 24 to 30 months. On appeal, Mr. Rosales challenges the procedural reasonableness of his sentence, claiming that the district court improperly applied the Sentencing Guidelines.
The district court properly exercised jurisdiction over this case involving a crime against the United States pursuant to 18 U.S.C. § 3231. We have jurisdiction over this appeal of the district court's final sentencing decision pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a)(2).
We review de novo a district court's interpretation of the Sentencing Guidelines where the appellant's argument was properly preserved before the district court. United States v. Ford, 613 F.3d 1263, 1268 (10th Cir.2010).
In United States v. Ruiz-Gea, we confronted the precise issue that Mr. Rosales raises in his appeal in analogous factual circumstances, but there only reviewed for plain error because the defendant's objection to the 16-level enhancement was not preserved in the district court. United States v. Ruiz-Gea, 340 F.3d 1181, 1185 (10th Cir.2003). In Ruiz-Gea, we found no plain error in the district court's application of the 16-level enhancement, but explicitly noted the difficulty of the issue and invited future litigants to address the question after proper preservation before the district court. Id. at 1188.
Mr. Rosales preserved this issue in the district court proceedings, so here we must apply de novo review to the district court's application of the Guidelines. Because our opinion in Ruiz-Gea held that the defendant's argument was at least "plausible" and only resolved the case on the ground that the district court did not plainly err, in this case we must set out anew in reviewing § 2L1.2's application. See Ruiz-Gea, 340 F.3d at 1187.
The Guidelines provision at issue in this case, USSG § 2L1.2(b)(1), provides as follows:
Application Note 1(B)(vii) to § 2L1.2 defines a "sentence imposed" as including "any term of imprisonment given upon revocation of probation. . . ." Additionally, the commentary makes clear that the length of the defendant's prior sentence is the maximum term of imprisonment for his prior offense. In other words, when the defendant's earlier sentence is for a range of years, the term of imprisonment is the maximum end of that range, for purposes of § 2L1.2.
Mr. Rosales challenges the use of his 15 year sentence because it was not imposed until after he committed the base offense in 8 U.S.C. § 1326. In other words, Mr. Rosales asks us only to count the drug trafficking sentence that was imposed before he illegally reentered the country.
First and foremost, we carefully focus on the consequences of the Sentencing Commission's use of the word "after" in its provision. According to Mr. Rosales, this word choice means that all the elements of the § 2L1.2(b)(1) enhancements—conviction and imposition of sentence for a prior drug trafficking felony—must occur prior to the defendant's earlier deportation in order for the enhancement to be implicated. Under Mr. Rosales's view, the § 2L1.2(b)(1)(A) 16-level enhancement plainly does not apply to him since the 15 year sentence for his drug trafficking felony was not imposed before his illegal reentry.
The text of § 2L1.2(b)(1) makes repeated use of the past tense ("imposed"; "exceeded") in referring to the predicate drug trafficking felony sentence serving as the basis for an enhancement, implying that the previous sentence must have been imposed before some date of reference.
In other words, we conclude that the temporal requirement contained in the text of § 2L1.2 with regard to the defendant's conviction also applies to the imposition of his sentence for that conviction. This view is consistent with the interpretation of § 2L1.2 adopted by the Seventh Circuit in United States v. Lopez, 634 F.3d 948 (7th Cir.2011). Our ultimate disposition is consistent with results reached in three of our sibling circuits, though we recognize that one circuit has held to the contrary. Compare United States v. Bustillos-Pena, 612 F.3d 863, 869 (5th Cir. 2010) (relying on the rule of lenity and concluding that "it is error to implement the sixteen-level enhancement" in analogous factual circumstances), United States v. Lopez, 634 F.3d 948, 950 (7th Cir.2011) ("We hold that [the defendant's] later sentence on probation revocation after his deportation and reentry should not count under section 2L1.2(b)(1)(A)(i)."), and United States v. Guzman-Bera, 216 F.3d 1019, 1021 (11th Cir.2000) (applying an earlier version of § 2L1.2(b)(1)(A) when determining whether the defendant had committed an aggravated felony and concluding that a post-deportation and -illegal reentry sentence lengthening "should not have been used for enhancement purposes under U.S.S.G. § 2L1.2(b)(1)(A)"), with United States v. Compres-Paulino, 393 F.3d 116, 118 (2d Cir.2004) (per curiam)
The government argues that the commentary to § 2L1.2 supports its interpretation of the provision. We disagree. We defer to the Sentencing Commission's view as expressed in the commentary unless manifestly inconsistent with the Guidelines themselves. United States v. Rendon-Alamo, 621 F.3d 1307, 1309 (10th Cir.2010). Like the Seventh Circuit in Lopez, we conclude that the commentary does not support the government's construction of § 2L1.2. See Lopez, 634 F.3d at 953.
We owe no particular deference to the commentary in this case because it does not, despite the government's contrary protestations, alter the temporal constraint inherent in § 2L1.2.
Most importantly, the commentary simply does not address the temporal constraint at the crux of this appeal. Invocation of the "relation back" doctrine for increased sentences upon revocation of probation, as required by the commentary, is not inconsistent with our understanding of the temporal constraint embodied in the text of § 2L1.2. The only reference to any sort of temporal constraint in the relevant portion of § 2L1.2's commentary is that the meaning of "sentence imposed" is "without regard to the date of the conviction." We do not interpret this as an exception to the temporal limitation that we have concluded is embedded in § 2L1.2. Instead, the phrase "without regard to the date of conviction" simply instructs us to consider, in applying § 2L1.2, all of the defendant's convictions prior to his illegal reentry, no matter how far in the past they occurred. See, e.g., United States v. Olmos-Esparza, 484 F.3d 1111, 1113-14 (9th Cir.2007); United States v. Camacho-Ibarquen, 410 F.3d 1307, 1313-15 (11th Cir.2005).
Moreover, in explaining the rationale for its definition of "sentence imposed," the Sentencing Commission clarified that its definition "is consistent with the case law interpreting the term [`sentence imposed']. . . ."
If the Commission had, in its commentary or § 2L1.2 itself, addressed or at least mentioned the temporal constraint that has arisen in Mr. Rosales's case, we would, of course, give great deference to its interpretation of the Guidelines. See United States v. Morris, 562 F.3d 1131, 1136 (10th Cir.2009). Unfortunately for the government, the pertinent Application Note fails to make any reference to the temporal restraint embodied in § 2L1.2(b)(1)—that the prior conviction and imposition of sentence must occur before the defendant illegally reenters the country. We are not ignoring the commentary on the grounds that it is in conflict with the Guidelines themselves; instead, we find that the commentary offers no guidance at all as to the temporal constraint lying at the heart of this appeal. We therefore decline to conclude that the commentary compels the result advocated by the government.
Our conclusion that the commentary offers no guidance as to the temporal restraint in § 2L1.2 does not render the relevant portion of the commentary meaningless or superfluous. If, for example, a defendant is on probation for a pre-deportation drug trafficking felony and has his sentence increased upon revocation of probation before he is deported, the commentary clarifies that his post-revocation sentence, which would clearly satisfy the temporal restraint in § 2L1.2, should be included in calculating his enhancement level. The result in this hypothetical example is not at all obvious without the interpretive guidance offered in the commentary to § 2L1.2.
We also note that our interpretation of § 2L1.2 is consistent with its overall purpose as part of the Guidelines sentencing scheme. The parties agree that the purpose of § 2L1.2(b)(1) is to punish illegal reentry more severely where the defendant has committed one or more of certain enumerated prior crimes (in this case, a drug trafficking felony). The method for determining the seriousness of the prior drug trafficking felony is clearly and numerically prescribed—the length of the
Mr. Rosales's act of illegally reentering the country reveals nothing about the seriousness of his drug trafficking conviction at the time he violated 8 U.S.C. § 1326. It would be inconsistent with the purpose of § 2L1.2—whose text draws a distinction between pre- and post-illegal reentry actions—to consider revocation of his probation resulting from the base offense of illegal reentry in measuring the seriousness of his earlier drug trafficking felony.
We acknowledge that our decision is squarely in conflict with the Second Circuit's holding in United States v. Compres-Paulino, 393 F.3d 116 (2d Cir.2004) (per curiam). We disagree with that ruling for the reasons elaborated above. One particular concern we have with that decision is the disparate treatment it gives to like offenders whose prosecutions have happened to differ sequentially. As Mr. Rosales points out, if we were to adopt the Second Circuit's rule, Mr. Rosales would face more substantially increased punishment solely because of the happenstance that his state probation was revoked before his federal prosecution commenced. This concern has also been shared by the Fifth and Seventh Circuits. See United States v. Bustillos-Pena, 612 F.3d 863, 867-68 (5th Cir.2010); United States v. Lopez, 634 F.3d 948, 951-52 (7th Cir.2011). The possibility of anomaly is not motivating us to "rewrite the Guidelines," a practice against which we admonished in United States v. Dozier, 555 F.3d 1136, 1141 (10th Cir.2009). Instead, we simply bolster our conclusion, which is grounded in the Guidelines text, by acknowledging that it avoids needless and nonsensical aberrant results.
Although not dispositive to our resolution of the issue at hand, we find it noteworthy that the Sentencing Commission has failed to amend § 2L1.2 despite the holdings of the Fifth and Seventh Circuits, which have interpreted § 2L1.2 in the manner urged by Mr. Rosales. We do not go as far as characterizing the Commission's silence on the matter as affirmative assent to the positions of these circuits, especially given that the circuit split on this issue has only become pronounced quite recently; the Fifth Circuit's opinion in Bustillos-Pena, issued in July 2010, represented the first direct conflict with the Second Circuit's 2004 opinion in Compres-Paulino. The Seventh Circuit opinion in Lopez was issued in March 2011, just one month prior to the Commission's submission of the 2011 proposed amendments to Congress. We would err to unabashedly speculate that the Commission's
Having concluded that the district court misapplied the Sentencing Guidelines, we must determine whether to remand Mr. Rosales's case to the district court for resentencing. Although the Guidelines range before the district court is advisory in nature, it is the "foundation or starting point from which the sentencing process proceeds"; absent any showing of harmless error, we must reject a sentence "premised on an erroneous Guidelines calculation." United States v. Rendon-Alamo, 621 F.3d 1307, 1308 (10th Cir.2010) (quotations omitted); see also United States v. Keck, 643 F.3d 789, 798 (10th Cir.2011). The government bears the burden of proving harmless error by a preponderance of the evidence. Harmless error is defined as an error that "did not affect the district court's selection of the sentence imposed." Keck, 643 F.3d at 798 (citing United States v. Labastida-Segura, 396 F.3d 1140, 1143 (10th Cir.2005)). Having failed to argue that any error by the district court was harmless, the government has not met its burden.
Mr. Rosales has conceded that he is subject to the 12-level enhancement in § 2L1.2(b)(1)(B). The district court should recalculate Mr. Rosales's guidelines range with the smaller 12-level enhancement from § 2L1.2(b)(1)(B) replacing the 16-level enhancement from § 2L1.2(b)(1)(A) and proceed accordingly. We
GORSUCH, J., dissenting:
In the richness of the English language, few things can create as much mischief as piling prepositional phrase upon prepositional phrase. The child says, "I saw the man on the hill with the telescope." Did the child use the telescope to see the man on the hill? Or did the child see a man— or even a hill—bearing a telescope? A newspaper headline heralds, "Brothers Reunited after 20 Years on a Roller Coaster." Did the brothers recently bump into each other at an amusement park? Or were they the long suffering experimental subjects of some evil genius?
Of course, we're all guilty of venial syntactical sins. And our federal government can claim no exception. Which takes us to USSG § 2L1.2(b)(1) and this jumble of prepositional phrases—
This has to be a sentence only a grammar teacher could love. We have here our old nemesis the passive voice, followed by a scraggly expression of time ("previously. . . after"), then a train of prepositional phrases linked one after another and themselves rudely interrupted by a pair of parenthetical punctuations.
Happily, our role isn't to grade the grammar, only discern the meaning. And often a speaker's meaning can be clear even when his grammar isn't. We know from context what the child means when talking about the telescope (because background knowledge tells us, say, that the child has a telescope and the man and hill do not). Context likewise explains what the newspaper is getting at (because, for example, the first sentence of the article makes clear the brothers hadn't seen each other in years). Even when the grammar's gnarled, meaning often can be straightforward enough.
And that well describes this case. At first blush, one might wonder whether only a conviction for a drug trafficking felony must precede a defendant's deportation—or whether the conviction and the imposition of a full 13 month sentence must both predate the deportation. The grammar and language of the guideline provision before us supply ample support for each of these competing readings. But, as with much in life, when we bother to consult the directions (the relevant context in this case), what at first appears confusing proves disarmingly simple.
First, though, the jumble of parts that creates the confusion.
The prepositional phrase that's the focus of our attention—"for which the sentence imposed exceeded thirteen months"— comes at the caboose of the prepositional train. It modifies the prepositional phrase just before it, describing the nature of the required felony—"for a felony that is a drug trafficking offense"—that itself modifies an even earlier prepositional phrase— "after a conviction"—that, finally, modifies the phrase "was deported." From all this, we can be sure that the deportation must come after a conviction for a drug trafficking felony. But we can have no similar confidence that the "sentence imposed" must. After all, the prepositional phrase discussing the "sentence imposed" is not the next car in the prepositional train, or even the one after that, but two modifying phrases away.
The parenthetical punctuation only serves to accentuate the grammatical ambiguity. "[D]eported . . . after—(A) a conviction for a felony" tells us in no uncertain terms that the deportation has to come after a felony conviction. But then the nature of both the felony and its sentence appear in a separate, punctuationally pronounced, subsection: "that is (i) a drug trafficking offense for which the sentence imposed exceeded 13 months." Here again the time specification ("after") is separated, not just grammatically now but also by punctuation, from the "sentence imposed."
Neither does verb tense help much. True, the guideline asks us whether the "sentence imposed exceeded thirteen months," but the use of the past tense does not necessarily mean that a defendant's sentence must have exceeded 13 months at the time of deportation. The guidelines are, after all, written for application by a federal sentencing judge. And it's equally plausible to read this phrase as referring to any sentence imposed before the time of sentencing in the federal illegal reentry case. This reading finds further support
When we open the box and find we can't make sense of the cascade of parts flowing from it, sometimes it helps to consult the accompanying directions. And here the sentencing commission's commentary on how to apply its guidelines provides just the guidance we need. The commentary expressly instructs us that in calculating the "length of the sentence imposed"—in determining whether the sentence imposed exceeded 13 months—we must include "any term of imprisonment given upon revocation of probation, parole, or supervised release." USSG § 2L1.2, Application Note 1(B)(vii) (emphasis added). The term "any" tells us to account not for some probation revocation sentences but "every" or "all" probation revocation sentences, "of whatever kind." Webster's Third New International Dictionary 97 (2002).
So it is the compositional cloud now lifts. We know that deportation must come after a conviction. That conviction must be for a felony drug trafficking offense. And that offense must result in a sentence greater than 13 months. But in figuring the length of the sentence we can now be sure that we must include "any terms of imprisonment given upon revocation of probation, parole, or supervised release." In this case, of course, that means Mr. Rosales was indeed eligible for a sentencing enhancement. In total and eventually, his sentence for a drug trafficking felony well exceeded 13 months. So the district court got it right and should be affirmed.
Of course, contrary arguments can be— and have been—made about the guideline's meaning. But, to my mind, a careful inspection of them only serves to confirm the correctness of the district court's course.
Some say that the guideline is "most naturally" read to require the "sentence imposed" to come "after" a deportation (or, presumably, after the defendant remained in the country illegally). See, e.g., United States v. Bustillos-Pena, 612 F.3d 863, 867 (5th Cir.2010); Maj. Op. at 1351 et seq. Yet, as we have just seen, the commission's grammar and punctuation—independently and together—suggest the plausible, alternate reading that the "after" time limit applies only to the conviction, not the sentence imposed. And where, as here, a guideline is susceptible to two plausible readings, it is the commission in its commentary, not a court in its opinion, that gets to say what the provision "most naturally" means. The Supreme Court has repeatedly emphasized just this point, instructing that the sentencing commission's commentary resolving ambiguities in the guidelines must be treated as "authoritative." Stinson v. United States, 508 U.S. 36, 38, 113 S.Ct. 1913, 123 L.Ed.2d 598 (1993).
To this, some respond that the commentary doesn't speak to the question before us. They suggest that the commentary tells us only that in applying the guideline courts may look to "all of the defendant's convictions prior to his illegal reentry." Maj. Op. at 1352; see also id. at 1352-54; cf. United States v. Lopez, 634 F.3d 948, 952-53 (7th Cir.2011). But the problem with this argument is that it reads into the commentary limiting language that simply isn't there. The commentary does not say that the "sentence imposed" includes only time served "prior to his illegal reentry." In fact, the commentary tells us exactly
Retreating from the language of the guideline and commentary, some say that sound policy would be better served by limiting § 2L1.2's enhancement only to defendants who were sentenced to more than thirteen months prior to deportation. Only pre-deportation prison time, the argument goes, is a valid measure of the seriousness of the underlying felony. Post-deportation revocation sentences are only "technically imposed" as part of the "earlier felony." Maj. Op. at 1354; Bustillos-Pena, 612 F.3d at 867; Lopez, 634 F.3d at 951. This argument, however, simply mistakes our role. Sentencing courts may of course choose to vary from the guidelines, but that doesn't mean we may rewrite them or their commentary to suit our penological preferences. See United States v. Dozier, 555 F.3d 1136, 1141 (10th Cir.2009). Neither, for that matter, is it clear why prudent penological policy would distinguish between pre- and post-deportation sentences. An infraction that causes a court to impose a revocation sentence would, after all, seem to be no less serious after deportation than before. Nor could one plausibly suggest that we should ignore probation revocation sentences altogether when trying to measure the seriousness of the defendant's offense. We've long rejected precisely this view, explaining that "[a] defendant who does not abide by the terms of his probation . . . demonstrate[s] that he should not have been given probation in the first place" and merits instead the full prison term he is (eventually) required to serve. United States v. Ruiz-Gea, 340 F.3d 1181, 1186 (10th Cir.2003) (quotation omitted).
Some say that restricting our attention to time served prior to the defendant's deportation (or unlawfully remaining in the country) is necessary to avoid "disparate" treatment between similarly situated individuals. See Maj. Op. at 1351; Bustillos-Pena, 612 F.3d at 867-68; Lopez, 634 F.3d at 952. On this line of thinking, it is unjust that the application of a sentencing enhancement might turn on whether state or federal officials happen to collar the defendant first. But this objection once again mistakes the nature of our role in interpreting the guidelines, failing to abide the fact that "the possibility of anomalous results is no[] reason to" rewrite the sentencing commission's guidance. See Dozier, 555 F.3d at 1141. Neither, for that matter, is it apparent that there's even a meaningful anomaly to worry about in the first place. Federal sentencing law usually affords special consideration to state criminal convictions as a matter of comity—and
Finally, some say the rule of lenity should play a role in how we read the guideline provision before us. See Bustillos-Pena, 612 F.3d at 868-69. But whatever role the rule plays in the sentencing (as opposed to conviction) context, it isn't triggered unless an interpretive ambiguity persists after "seizing every thing from which aid can be derived." Smith v. United States, 508 U.S. 223, 239, 113 S.Ct. 2050, 124 L.Ed.2d 138 (1993) (quotation marks and alterations omitted). And, again, that's just not our case after taking into account the sentencing commission's (authoritative) directions in its commentary.
In these ways then, the common objections to the district court's course in this case, at best, do nothing to call it into question—and, at worst, they actually tend to confirm that the district court was right on target.
Still, one final observation, really a plea, a plea for syntactical assistance, is in order. Though the guideline's meaning comes clear from the commission's commentary, there's no getting around the fact that the guideline's snarl of prepositional phrases has managed to tie us circuit judges in knots. Some read the provision as I do, see United States v. Compres-Paulino, 393 F.3d 116, 118 (2d Cir.2004) (per curiam); Bustillos-Pena, 612 F.3d at 869-70 (Clement, J., dissenting); others read it as my colleagues do, see Lopez, 634 F.3d at 949; United States v. Guzman-Bera, 216 F.3d 1019, 1020-21 (11th Cir. 2000). And who's right and who's wrong about all this may be ultimately less important than the fact we're unable to agree. Because of our disagreement, similarly situated defendants receive different sentences only because of the happenstance of the circuit in which they sit. And this is surely among the most unfortunate possible sentencing anomalies of all. One thing everyone concerned might agree on is that it would be a welcome thing indeed if the sentencing commission would intervene to loosen the knot we have tied, set us aright in the application of § 2L1.2, and in this way help ensure the consistent treatment of those who appear before the federal courts.
