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United States v. Cuevas-Lopez

United States Court of Appeals, Ninth Circuit

August 19, 2019

United States of America, Plaintiff-Appellee,
v.
Vicente Cuevas-Lopez, AKA Vicente Cuevas Lopez, Defendant-Appellant.

          Argued and Submitted March 6, 2019 Phoenix, Arizona

          Appeal 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 Defendant-Appellant.

          Corey 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 Plaintiff-Appellee.

          Before: Richard R. Clifton, Sandra S. Ikuta, and Michelle T. Friedland, Circuit Judges.

         SUMMARY[*]

         Criminal Law

         Affirming 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).

         The 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.

         Because 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.

         Dissenting, 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.

          OPINION

          FRIEDLAND, CIRCUIT JUDGE.

         Defendant-Appellant 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.[1] 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).

         A state 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 § 2L1.2(b).

         I.

         A.

         The 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 (2007)).

         The 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.

         B.

         Cuevas-Lopez, 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.

         In 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."[2]

         The 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.

         The PSR 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.

         At the 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.

         Cuevas-Lopez 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 Guidelines range.

         II.

         A.

         Where, 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. 2001)).

         Cuevas-Lopez 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.

         B.

         1.

         Although 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).

         As the 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. § 994(p).

         "We 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 guidelines).

         2.

         Chapter 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.[3] 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.[4] 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 convictions.

         Subsection (b)(3), which the district court applied to enhance Cuevas-Lopez's base offense level in this case, provides in full:

(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 ...

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