United States v. Adolfo Baeza-Suchil, AKA Joe Garza-Garza, AKA Joe G. Garza, AKA Adolfo Sucsil , 52 F.3d 898 ( 1995 )

52 F.3d 898

UNITED STATES of America, Plaintiff-Appellee,
v.
Adolfo BAEZA-SUCHIL, aka Joe Garza-Garza, aka Joe G. Garza,
aka Adolfo Sucsil, Defendant-Appellant.

No. 94-3360.

United States Court of Appeals,
Tenth Circuit.

April 21, 1995.

Submitted on the briefs:*

Randall K. Rathbun, U.S. Atty., Richard L. Hathaway, Asst. U.S. Atty., Topeka, KS, for plaintiff-appellee.

David J. Phillips, Federal Public Defender, Marilyn M. Trubey, Asst. Federal Public Defender, Topeka, KS, for defendant-appellant.

Before ANDERSON, BALDOCK, and BRORBY, Circuit Judges.

BALDOCK, Circuit Judge.

1

Defendant Adolfo Baeza-Suchil appeals his sentence for aggravated illegal re-entry after deportation, 8 U.S.C. Sec. 1326(a), and felon in possession of a firearm, 18 U.S.C. Sec. 922(g)(1). We exercise jurisdiction under 28 U.S.C. Sec. 1291 and 18 U.S.C. Sec. 3742(a). We affirm.

2

Defendant, a citizen and national of Mexico, pled guilty to aggravated illegal re-entry after deportation, 8 U.S.C. Sec. 1326(a) ("Count I"), and felon in possession of a firearm, 18 U.S.C. Sec. 922(g)(1) ("Count II"). Prior to sentencing, the United States Probation Office prepared and filed a presentence report. The presentence report recommended that the district court determine the combined offense level for Counts I and II under U.S.S.G. Sec. 3D1.4 instead of grouping Counts I and II under U.S.S.G. Sec. 3D1.2. Defendant objected to calculation of his sentence using the combined offense level under U.S.S.G. Sec. 3D1.4, and contended that the district court should calculate his sentence by grouping Counts I and II pursuant to U.S.S.G. Sec. 3D1.2(a) because both counts "involve the same victim and the same act or transaction."1

3

At sentencing, the district court determined that based on United States v. Barron-Rivera, 922 F.2d 549 (9th Cir.1991), Counts I and II did not qualify for grouping pursuant to U.S.S.G. Sec. 3D1.2(a). Instead, the district court calculated the combined offense level for Counts I and II under U.S.S.G. Sec. 3D1.4, and sentenced Defendant to two concurrent ninety-two month terms of imprisonment and to two concurrent two-year terms of supervised release. This appeal followed.

4

On appeal, Defendant contends the district court erred in refusing to group Counts I and II for guideline calculation pursuant to U.S.S.G. Sec. 3D1.2(a). We disagree.

5

We review the district court's interpretation and application of the sentencing guidelines de novo. United States v. Cook, 49 F.3d 663, 664 (10th Cir.1995). Section 3D1.2 provides that "counts involving substantially the same harm shall be grouped together into a single Group." U.S.S.G. Sec. 3D1.2; see also United States v. Reetz, 18 F.3d 595, 598-99 (8th Cir.1994) (discussing grouping of counts under Sec. 3D1.2). Section 3D1.2 defines four instances in which counts involve substantially the same harm. U.S.S.G. Sec. 3D1.2(a)-(d). Subsection (a) states that counts involving "the same victim and the same act or transaction" should be grouped. Id. Sec. 3D1.2(a). The commentary to Sec. 3D1.2 states "[f]or offenses in which there are no identifiable victims (e.g., drug or immigration offenses, where society at large is the victim), the 'victim' for purposes of subsection[ ] (a) ... is the societal interest that is harmed. In such cases, the counts are grouped together when the societal interests that are harmed are closely related." Id. Sec. 3D1.2 application note 2 (emphasis added).

6

Defendant argues that the district court should have grouped Counts I and II under Sec. 3D1.2(a) because both convictions harm the same or closely related societal interest.2 Specifically, Defendant maintains that aggravated illegal re-entry after deportation, 8 U.S.C. Sec. 1326(a), and felon in possession of a firearm, 18 U.S.C. Sec. 922(g)(1), harm the societal interest in prohibiting criminal conduct by convicted felons.

7

The Ninth Circuit rejected a similar argument in Barron-Rivera. In Barron-Rivera, the defendant appealed the district court's refusal to group his conviction for illegal re-entry after deportation, 8 U.S.C. Sec. 1326, with his convictions for illegal alien in possession of a firearm, 18 U.S.C. Sec. 922(g)(5), and felon in possession of a firearm, 18 U.S.C. Sec. 922(g)(1). Barron-Rivera, 922 F.2d at 554. The defendant argued that all three convictions should be grouped pursuant to U.S.S.G. Sec. 3D1.2(a) because each was a victimless crime which harmed a societal interest. The court observed that "the offenses should not be grouped if they pose threats to distinct and separate societal interests." Id. at 555 (relying on U.S.S.G. Sec. 3D1.2 application note 2). Applying these principles, the court concluded that the offenses pose threats to distinct and separate societal interests because "[s]ection 922(g) protects society against those determined unqualified to possess firearms, while 8 U.S.C. Sec. 1326 is designed to effectively enforce the immigration laws." Id. (citations omitted). The Ninth Circuit, therefore, refused to group the defendant's conviction for illegal re-entry after deportation with his two 18 U.S.C. Sec. 922(g) firearm convictions.

8

We believe the reasoning of Barron-Rivera compels a similar result in the instant case. The offense of aggravated illegal re-entry after deportation, 8 U.S.C. Sec. 1326(a), poses a threat to a distinct and separate societal interest than does felon in possession of a firearm, 18 U.S.C. Sec. 922(g)(1). The former involves the societal interest in enforcing immigration laws, while the latter implicates the societal interest in keeping firearms from those unqualified to possess them. See Barron-Rivera, 922 F.2d at 555. Defendant was therefore convicted for offenses that "pose threats to distinct and separate societal interests." Id.

9

Further, we reject Defendant's argument that Counts I and II qualify for grouping under U.S.S.G. Sec. 3D1.2(a) because the offenses implicate the societal interest in prohibiting criminal conduct by convicted felons. Under Defendant's logic, nearly any combination of offenses would qualify for grouping under Sec. 3D1.2(a) because a societal interest in deterring criminal behavior underlies all statutory offenses. The Sentencing Commission indicated that it did not intend grouping based upon such a general societal interest. Indeed, the Sentencing Commission specified that two offenses arguably supported by the broad societal interest in deterring criminal behavior do not qualify for grouping under Sec. 3D1.2(a). See U.S.S.G. Sec. 3D1.2 application note 2 ("[W]here one count involves the sale of controlled substances and the other involves an immigration law violation, the counts are not grouped together because different societal interests are harmed."); see also United States v. Egson, 897 F.2d 353, 354 (8th Cir.1990) (distribution of cocaine charge and illegal acquisition of food stamp charge implicate distinct societal interests). As a result, Counts I and II do not qualify for grouping under Sec. 3D1.2(a), and the district court properly calculated Defendant's combined offense level under Sec. 3D1.4.

10

AFFIRMED.

*

After examining the briefs and appellate record, this panel has determined unanimously to honor the parties' request for a decision on the briefs without oral argument. See Fed.R.App.P. 34(f); 10th Cir.R. 34.1.9. The case therefore is ordered submitted without oral argument

1

Grouping Counts I and II for guideline calculation under U.S.S.G. Sec. 3D1.2 produces an offense level of 21 after a three-level reduction for acceptance of responsibility, which combined with a criminal history score of VI, yields a sentencing range of 77 to 96 months. In contrast, calculation of a combined offense level for Counts I and II under U.S.S.G. Sec. 3D1.4 results in an offense level of 23 after a three-level reduction for acceptance of responsibility, and with a criminal history score of VI, produces a sentencing range of 92 to 115 months

2

Defendant also argues on appeal that the district court should have grouped Counts I and II under Sec. 3D1.2(c) and (d). However, Defendant failed to raise either Sec. 3D1.2(c) or Sec. 3D1.2(d) before the district court. Indeed, Defense counsel informed the district court at sentencing that "[t]he Ninth Circuit [in Barron-Rivera ] focused its discussion primarily on 3D1.2(c), which we are not arguing." Tr. Vol. II at 3 (emphasis added). Thus, we do not consider Defendant's contentions that Counts I and II qualify for grouping under Sec. 3D1.2(c) and (d). See Hicks v. Gates Rubber Co., 928 F.2d 966, 970 (10th Cir.1991)