Case: 13-50637   Document: 00512633051     Page: 1   Date Filed: 05/16/2014




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                                  United States Court of Appeals
                                                                           Fifth Circuit


                                 No. 13-50637                            FILED
                                                                     May 16, 2014
                                                                    Lyle W. Cayce
UNITED STATES OF AMERICA,                                                Clerk

                                           Plaintiff - Appellee
v.

JOSE LUIS MURILLO-ACOSTA

                                           Defendant - Appellant




                Appeal from the United States District Court
                     for the Western District of Texas


Before REAVLEY, JONES, and GRAVES, Circuit Judges.
PER CURIAM:
      Jose Luis Murillo-Acosta pled guilty to using a fraudulent visa as proof
of permission to enter the United States. 18 U.S.C. § 1546(a). At sentencing,
his offense level was increased by two levels under U.S.S.G. § 2L2.2(b)(1) for a
previous deportation.    Murillo-Acosta challenges the two level increase,
arguing that after a 2013 determination that he was removable, he voluntarily
departed in lieu of removal pursuant to 8 U.S.C. § 1229c(a)(1). Murillo-Acosta
contends that because he voluntarily departed he has not “been deported” for
the purposes of U.S.S.G. § 2L2.2(b)(1). We reject Murillo-Acosta’s argument,
and AFFIRM the sentence.
      We review the district court’s interpretation and application of the
sentencing guidelines de novo. United States v. Cisneros-Gutierrez, 517 F.3d
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                                  No. 13-50637
751, 764 (5th Cir. 2008). Section 2L2.2(b)(1) states: “If the defendant is an
unlawful alien who has been deported (voluntarily or involuntarily) on one or
more occasions prior to the instant offense, increase by 2 levels.” In 2013 a
warrant of removal issued for Murillo-Acosta stating that he was “subject to
removal/deportation from the United States based upon a final order.” The
Immigration Judge in that proceeding granted Murillo-Acosta voluntary
departure pursuant to 8 U.S.C. § 1229c(a)(1), but stated that if he failed to
depart the grant of voluntary departure would be withdrawn and he would be
removed.
      In the absence of Fifth Circuit precedent, the district court relied on the
reasoning of an unpublished Third Circuit case in which the court concluded
that “a grant of voluntary departure does not exclude a deportable alien from
all consequences of illegal entry” and “in some situations . . . may be treated as
a deportation.” United States v. Munoz-Valencia, 59 F. App’x 483, 485-87
(3d Cir. 2003). Additionally, the Ninth Circuit has held that a person under a
deportation order who voluntarily leaves the United States has been deported.
United States v. Blaize, 

, 851 (9th Cir. 1992).
      Murillo-Acosta attempts to distinguish those decisions, because in his
case, unlike those mentioned, a formal removal order had not issued. His
argument is not persuasive.      Section 2L2.2(b)(1) specifically mentions the
possibility that an illegal alien has been voluntarily deported. Murillo-Acosta
has cited no authority supporting his interpretation of the guideline and fails
to demonstrate how his narrow construction would allow any plausible
definition of voluntary deportation.        Additionally, the Second and Third
circuits have suggested, in dicta, that the guideline was intended to apply
whenever an alien departs voluntarily – even without formal removal
proceedings. See United States v. Sentamu, 

, 136 (2d Cir. 2000);
United States v. Clase-Espinal, 

, 1058 (1st Cir. 1997).           We
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                               No. 13-50637
conclude that an unlawful alien who is allowed to voluntarily depart pursuant
to 8 U.S.C. § 1229c(a)(1) in lieu of deportation has “been deported” for the
purposes of U.S.S.G. § 2L2.2(b)(1). Accordingly, the sentence is AFFIRMED.




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