and Submitted March 6, 2019 Phoenix, Arizona
from the United States District Court for the District of
Arizona No. 4:17-cr-00306-JGZ-DTF-1 Jennifer G. Zipps,
District Judge, Presiding
Jeffrey G. Buchella (argued), Tucson, Arizona, for
J. Mantei (argued), Assistant United States Attorney;
Elizabeth A. Strange, First Assistant United States Attorney;
Robert L. Miskell, Appellate Chief; United States
Attorney's Office, Tucson, Arizona; for
Before: Richard R. Clifton, Sandra S. Ikuta, and Michelle T.
Friedland, Circuit Judges.
a sentence for attempted illegal reentry after deportation in
violation of 8 U.S.C. § 1326, the panel held that the
"single sentence rule" in U.S.S.G. §
4A1.2(a)(2) applies to the enhancements in U.S.S.G. §
2L1.2(b)(2) and (b)(3).
single sentence rule instructs that whether to treat multiple
prior sentences as a single sentence depends on whether they
were separated by an intervening arrest, charged in the same
instrument, or imposed on the same day; and provides that if
prior sentences are treated as a single sentence, a court
should use the longest sentence of imprisonment if concurrent
sentences were imposed and use the aggregate sentence of
imprisonment if consecutive sentences were imposed. A state
court had previously sentenced the defendant to two
consecutive 3.5-year terms imposed on the same day for two
second-degree burglary convictions.
the single sentence rule applies to § 2L1.2, the panel
concluded that the district court properly relied on the rule
to aggregate the defendant's two consecutive 3.5-year
sentences in applying a ten-level enhancement pursuant to
U.S.S.G. § 2L1.2(b)(3)(A), which applies to a defendant
charged under § 1326 who was previously ordered deported
or removed and who subsequently committed a felony offense
for which the sentence imposed was five years or more.
Judge Ikuta wrote that under the plain language of the
Sentencing Guidelines, the defendant does not have "a
conviction for a felony offense . . . for which the sentence
imposed was five years or more," U.S.S.G. § 2L1.2;
and that the applicable Guidelines range should not be
increased based solely on inferences regarding the Sentencing
Commission's unspoken intent.
FRIEDLAND, CIRCUIT JUDGE.
Vicente Cuevas-Lopez pleaded guilty to attempted illegal
reentry after deportation in violation of 8 U.S.C. §
1326. In determining Cuevas-Lopez's sentence, the
district court applied a ten-level enhancement to his base
offense level pursuant to United States Sentencing Guidelines
Manual ("U.S.S.G." or "Guidelines
Manual") § 2L1.2(b)(3)(A) ("the
Enhancement"), as had been recommended by the Pre-
Sentence Report. The Enhancement applies to a defendant
charged under 8 U.S.C. § 1326 who was previously ordered
deported or removed and who subsequently committed "a
felony offense . . . for which the sentence imposed was five
years or more." U.S.S.G. § 2L1.2(b)(3)(A).
court had previously sentenced Cuevas-Lopez to two
consecutive 3.5-year terms imposed on the same day for two
second-degree burglary convictions. The district court
aggregated Cuevas-Lopez's two 3.5-year sentences to
produce a seven-year sentence for purposes of applying the
Enhancement, relying on § 4A1.2(a)(2) of the Guidelines
Manual, which is known as the "single sentence
rule." Cuevas-Lopez, who did not object at sentencing,
now argues that the district court erred in adhering to the
single sentence rule and thus in aggregating the two
sentences when considering what level of enhancement to
apply. We affirm, joining the Fifth Circuit in holding that
the single sentence rule in § 4A1.2(a)(2) governs the
determination whether an enhancement applies under §
Sentencing Reform Act of 1984 established "factors to
guide [federal] district courts in exercising their
traditional sentencing discretion." Beckles v.
United States, 137 S.Ct. 886, 893 (2017). Congress
simultaneously "created the United States Sentencing
Commission and charged it with establishing guidelines to be
used for sentencing." Id. Although "[t]he
Guidelines were initially binding on district courts,"
the Supreme Court in United States v. Booker, 543
U.S. 220 (2005), "rendered them 'effectively
advisory.'" Beckles, 137 S.Ct. at 894
(quoting Booker, 543 U.S. at 245). The Guidelines
Manual is nonetheless '"the starting point and the
initial benchmark' for sentencing." Id.
(quoting Gall v. United States, 552 U.S. 38, 49
Guidelines Manual provides sentencing ranges determined by a
combination of "the seriousness of a defendant's
offense . . . and his [or her] criminal history."
Molina-Martinez v. United States, 136 S.Ct. 1338,
1342 (2016). The offense seriousness is reflected in an
"offense level" comprised of a base offense level,
which is assigned by the Guidelines Manual to each type of
conviction; specific offense characteristics, which can
increase or decrease the offense level for each offense; and
upward and downward adjustments, which can be applied to any
offense. See U.S.S.G. § 1B1.1(a)(1)-(5). A
defendant is assigned criminal history points based on his or
her past criminal conduct, which then places the defendant in
a criminal history category between I and VI. See
U.S.S.G. § 4A1.1; U.S.S.G. ch. 5, pt. A, Sentencing
Table. The Guidelines Manual combines this criminal history
category with a defendant's calculated offense level to
produce a recommended sentencing range. U.S.S.G. ch. 5, pt.
A, Sentencing Table.
who is a citizen of Mexico, was ordered deported from the
United States in 2004, and was deported several times between
2004 and 2015. He unsuccessfully attempted to reenter the
country in 2017. He was then charged with attempted illegal
reentry after deportation, in violation of 8 U.S.C. §
1326(a), as enhanced by 8 U.S.C. § 1326(b)(1).
Cuevas-Lopez pled guilty to the charge, and the district
court held a sentencing hearing in October 2017.
advance of the hearing, the U.S. Probation Office prepared a
Pre-Sentence Report ("PSR"). Applying §
2L1.2(a), the relevant offense guideline for illegal reentry
offenses, the PSR recommended a base offense level of eight
for a violation of 8 U.S.C. § 1326. With regard to
specific offense characteristics, the PSR added a ten-level
enhancement pursuant to § 2L1.2(b)(3)(A) based on the
fact that "[a]fter [Cuevas-Lopez] was first ordered
deported or removed from the United States, he sustained a
felony conviction for which the sentences imposed in a
two-count indictment were ordered to run consecutive,"
and which "resulted in a cumulative sentence that was
five years or more."
ten-level enhancement arose out of Cuevas-Lopez's
November 3, 2007 arrest for two felony burglaries. The first
burglary was reported on November 1, 2007, and the second was
committed on November 3, 2007. Cuevas-Lopez was convicted of
both burglaries, and on March 10, 2008 an Arizona state court
sentenced him to 3.5 years in prison for each offense,
ordered to run consecutively.
applied the single sentence rule to treat Cuevas-Lopez's
two consecutive 3.5-year sentences as a single seven-year
sentence. This aggregated seven-year sentence triggered the
ten-level enhancement under § 2L1.2(b)(3)(A) (again, the
"Enhancement"), so the PSR assigned Cuevas-Lopez an
adjusted offense level of 18 for the instant illegal reentry
offense. It then applied a three-level downward adjustment
for acceptance of responsibility, resulting in an offense
level of 15. The PSR placed Cuevas-Lopez in criminal history
category V based on the two burglaries discussed above and
other convictions between 2006 and 2008. Cuevas-Lopez's
criminal history category and offense level resulted in a
Guidelines range of 37 to 46 months in prison. Without
aggregating Cuevas-Lopez's two burglary sentences, §
2L1.2(b)(3)(B) would have called for an eight-level
enhancement based on a 3.5-year sentence, which would have
resulted in an offense level of 13 after the downward
adjustment and a Guidelines range of 30 to 37 months.
See U.S.S.G. ch. 5, pt. A, Sentencing Table.
sentencing hearing, the Government agreed with the PSR's
recommendation and argued, based on the § 2L1.2(b)(3)(A)
Enhancement, that Cuevas-Lopez's base offense level of
eight was "properly enhanced by ten levels because the
defendant received a seven-year consecutive state sentence .
. . for two second-degree burglary counts charged in a single
indictment." The district court adopted the Guidelines
calculation in the PSR, to which Cuevas-Lopez did not object.
The court sentenced Cuevas-Lopez to 37 months in prison and
three years of supervised release.
timely appealed and now argues that the single sentence rule
does not apply to § 2L1.2(b)(3) enhancements, and that
the district court therefore should not have aggregated his
two prior 3.5-year sentences for purposes of determining his
as here, a defendant makes an argument on appeal that was not
the basis for an objection in the district court, we
generally review for plain error. See United States v.
Gomez, 725 F.3d 1121, 1125 (9th Cir. 2013) ("If the
defendant fails to object, we review for plain error.");
see also Fed. R. Crim P. 52(b) ("A plain error
that affects substantial rights may be considered even though
it was not brought to the court's attention."). We
have held, however, that "we are not limited to [plain
error] review when we are presented with a question that
'is purely one of law' and where 'the opposing
party will suffer no prejudice as a result of the failure to
raise the issue in the trial court.'" United
States v. Saavedra-Velazquez, 578 F.3d 1103, 1106 (9th
Cir. 2009) (quoting United States v.
Echavarria-Escobar, 270 F.3d 1265, 1267-68 (9th Cir.
urges us to apply de novo review, despite his failure to
object in the district court, because his argument about when
the single sentence rule applies presents a pure question of
law. The Government responds that our court's "pure
question of law" exception to plain error review is
inconsistent with the Supreme Court's interpretation of
Federal Rule of Criminal Procedure 52(b). In support, the
Government cites Puckett v. United States, 556 U.S.
129 (2009), in which the Supreme Court held that
"[f]ailure to abide by [the] contemporaneous-objection
rule ordinarily precludes the raising on appeal of [an]
unpreserved claim of trial error," with a "limited
exception," id. at 135, for a "plain error
that affects substantial rights," id. (quoting
Fed. R. Crim. P. 52(b)). The Government also relies on Judge
Graber's concurrence in United States v. Zhou,
838 F.3d 1007 (9th Cir. 2016), which opined that "[o]ur
'pure question of law' exception contradicts Rule
52(b) and the Supreme Court's case law."
Id. at 1016 (Graber, J., concurring). We need not
resolve this dispute or otherwise decide which standard of
review applies here, because we would affirm under either de
novo or plain error review. For the reasons explained below,
we conclude that the district court correctly interpreted the
Guidelines Manual in determining that the single sentence
rule applies to § 2L1.2(b) enhancements.
the Guidelines are advisory only, a "district court must
correctly calculate the recommended Guidelines sentence and
use that recommendation as the 'starting point and the
initial benchmark.'" United States v.
Munoz-Camarena, 631 F.3d 1028, 1030 (9th Cir. 2011)
(quoting Kimbrough v. United States, 552 U.S. 85,
108 (2007)). The court must keep the Guidelines range
"in mind throughout the process," id.
(quoting United States v. Carty, 520 F.3d 984, 991
(9th Cir. 2008) (en banc)), and "justify the extent of
[any] departure from the Guidelines," id.
"Failure to calculate the correct Guidelines range
constitutes procedural error." Peugh v. United
States, 569 U.S. 530, 537 (2013).
Supreme Court has explained, the Guidelines Manual
"contains text of three varieties," each of which
is written by the Sentencing Commission. Stinson v.
United States, 508 U.S. 36, 41 (1993). The "[f]irst
is a guideline provision itself," which "provide[s]
direction as to the appropriate type [and extent] of
punishment." Id. A "second variety of text
in the [Guidelines] Manual is a policy statement . . .
regarding application of the guidelines or other aspects of
sentencing that would further the purposes of the [Sentencing
Reform] Act." Id. (quotation marks omitted).
The third type of text in the Guidelines Manual is
commentary, which accompanies both guidelines and policy
statements. Id. Commentary may serve three
functions: to "interpret a guideline or explain how it
is to be applied"; to "suggest circumstances which
may warrant departure from the guidelines"; and to
"provide background information, including factors
considered in promulgating the guideline or reasons
underlying promulgation of the guideline." Id.
(alterations and citation omitted). Any modifications or
amendments to the guidelines provisions themselves (the first
category of text) must be accompanied by a "statement of
the reasons therefor" authored by the Sentencing
Commission, and take effect on a date set by the Commission,
within certain statutory parameters and subject to any
changes made by Congress. See 28 U.S.C. §
interpret the Sentencing Guidelines using the ordinary tools
of statutory interpretation." United States v.
Martinez, 870 F.3d 1163, 1166 (9th Cir. 2017). Our
interpretation "will most often begin and end with the
text and structure of the [g]uidelines" provisions
themselves. Id. (quoting United States v.
Joey, 845 F.3d 1291, 1297 n.8 (9th Cir. 2017)). We also
consider "the Commission's commentary interpreting
or explaining the text" of those guidelines provisions.
Id. The commentary "is authoritative unless it
violates the Constitution or a federal statute, or is
inconsistent with, or a plainly erroneous reading of, that
guideline." Stinson, 508 U.S. at 38; see
also United States v. Prien-Pinto, 917 F.3d
1155, 1157-58 (9th Cir. 2019) (following Stinson).
Policy statements, likewise, are binding "[t]o the
extent that they interpret substantive guidelines and do not
conflict with them or any statutory directives."
United States v. Chea, 231 F.3d 531, 536 n.1 (9th
Cir. 2000) (citation omitted); see also Stinson, 508
U.S. at 42 ("The principle that the Guidelines Manual is
binding on federal courts applies as well to policy
statements."). "We may also look to [a]
provision's history and purpose, such as by consulting
the Commission's statements of reason for a particular
amendment." Martinez, 870 F.3d at 1166
(citation and quotation marks omitted); see also United
States v. Ornelas, 825 F.3d 548, 554 (9th Cir. 2016)
(noting that we "look to the Commission's statements
of reason for guidance" in interpreting individual
Two of the Guidelines Manual governs offense conduct. The
offense guideline within Chapter Two applicable to a
conviction for attempted illegal reentry is §
2L1.2. Section 2L1.2(a) provides a base offense
level of eight. Sections 2L1.2(b)(1), (b)(2), and (b)(3),
which contain the specific offense characteristics, apply
enhancements of between two and ten levels based on a
defendant's prior convictions. Some of these enhancements
depend on the types of convictions sustained and others
depend on the length of sentences received. In §
2L1.2(b)(1), § 2L1.2(b)(2)(E), and §
2L1.2(b)(3)(E), the size of the enhancement turns on the type
of offense. The other subsections in §
2L1.2(b)(2) and § 2L1.2(b)(3), including the
Enhancement, add varying levels of enhancement based on the
length of a defendant's sentence imposed for prior
(b)(3), which the district court applied to enhance
Cuevas-Lopez's base offense level in this case, provides
(3) (Apply the Greatest) If, at any time after the defendant
was ordered deported or ordered removed from the United
States for the first time, the defendant engaged in criminal
conduct resulting in-
(A) a conviction for a felony offense (other than an
illegal reentry offense) for which the sentence imposed was
five years or more, increase by 10 levels;
(B) a conviction for a felony offense (other than an
illegal reentry offense) for which the sentence imposed was
two years or more, increase by 8 levels;
(C) a conviction for a felony offense (other than an
illegal reentry offense) for which the sentence imposed
exceeded one year and ...