United States v. Tapia-Leon , 193 F. App'x 818 ( 2006 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
September 1, 2006
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
U N ITED STA TES O F A M ER ICA,
Plaintiff-Appellee,
No. 05-2275
v. (District of New M exico)
(D.C. No. CR -05-446 JP)
A LEJA ND RO TA PIA -LEO N ,
Defendant-Appellant.
OR D ER AND JUDGM ENT *
Before M U RPH Y, SE YM OU R, and M cCO NNELL, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). This case is, therefore,
ordered submitted without oral argument.
Defendant-Appellant Alejandro Tapia-Leon pleaded guilty in the United
States District Court for the District of New M exico to illegal reentry by a
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
deported alien after conviction of an aggravated felony, in violation of 8 U.S.C. §
1326(a)(1), (a)(2), and (b)(2). The district court sentenced Tapia-Leon to seventy
months’ imprisonment, based in part on a sixteen-level enhancement for prior
deportation after a conviction for a felony alien smuggling offense. Tapia-Leon
appeals the application of the enhancement in calculating his sentence. W e assert
jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), and affirm.
After Tapia-Leon entered a plea of guilty, the United States Probation
Office prepared a Presentence Investigation Report (“PSR”) based on the 2004
edition of the United States Sentencing Guidelines (“USSG” or “Guidelines”).
Tapia-Leon’s base offense level was eight. The PSR indicated Tapia-Leon was
previously deported after being convicted in the United States District Court for
the Southern D istrict of Illinois of nine counts of illegal transportation of aliens,
in violation of 8 U.S.C. § 1324(a)(1)(A)(ii). Based on these prior convictions, the
PSR recommended a sixteen-level enhancement for prior deportation after a
conviction for a felony alien smuggling offense. See USSG § 2L1.2(b)(1)(A)(vii).
The PSR also recommended a three-level downward adjustment for acceptance of
responsibility, bringing Tapia-Leon’s adjusted offense level to tw enty-one.
Tapia-Leon’s criminal history category was V, resulting in a Guidelines range of
seventy to eighty-seven months.
Tapia-Leon requested that the district court impose a sentence below the
range set out in the PSR. He acknowledged the term “alien smuggling offense,”
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as defined in the 2004 edition of the Guidelines, includes convictions for illegal
transportation of aliens, in violation of 8 U.S.C. § 1324(a)(1)(A)(ii). He noted,
however, that this court defined “alien smuggling offense” under a former version
of the Guidelines to require “clandestine movement or concealment of aliens.”
See United States v. M artinez-Candejas, 347 F.3d 853, 855–57 (10th Cir. 2003)
(discussing 2002 edition of the Guidelines, which required a sixteen-level
enhancem ent for prior deportation after conviction for an alien smuggling offense
comm itted for profit and did not explicitly define the term “alien smuggling
offense”). Tapia-Leon argued the facts underlying his Illinois convictions did not
include any clandestine movement or concealment. Instead, according to Tapia-
Leon, he merely accepted a ride in a vehicle containing other aliens and drove the
vehicle when the original driver became tired. Thus, Tapia-Leon argued, his
offense was more akin to alien transportation than alien smuggling and was not
the type of conduct the enhancement was meant to deter. Tapia-Leon urged the
district court to take the circumstances of his prior convictions into consideration
when exercising its discretion under United States v. Booker, 543 U.S. 220(2005), and applying the factors in 18 U.S.C. § 3553(a) to arrive at an appropriate
sentence.
The district court adopted the recommendations contained in the PSR at
sentencing. In particular, it applied the sixteen-level enhancement for prior
deportation after a conviction for a felony alien smuggling offense. The district
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court also considered the § 3553(a) factors and determined “there are no factors in
this case that should take it outside of the guideline range.” The district court
therefore sentenced Tapia-Leon to a term of seventy months’ imprisonment, the
bottom of the applicable Guidelines range.
Tapia-Leon’s appeal challenges the district court’s application of the
sixteen-level enhancement for prior deportation after a conviction for a felony
alien smuggling offense. Tapia-Leon asserts he contested the factual basis for the
enhancement in his objections to the PSR. Specifically, according to Tapia-Leon,
he argued his prior Illinois convictions for illegal transportation of aliens were
not alien smuggling offenses because they did not involve clandestine movement
or concealment. Tapia-Leon notes when a defendant objects to a fact in the PSR,
the government is required to prove that fact at the sentencing hearing by a
preponderance of the evidence. See United States v. Keifer, 198 F.3d 798, 800
(10th Cir. 1999). Because the government did not present any evidence
demonstrating his alien smuggling convictions involved clandestine movement or
concealment, Tapia-Leon argues the case should be remanded for resentencing.
Tapia-Leon mischaracterizes the nature of the objections he made to the
PSR in district court. Tapia-Leon did not contest the factual basis for the sixteen-
level enhancement. At sentencing, Tapia-Leon indicated the facts stated in the
PSR were not in dispute and there was no need for an evidentiary hearing.
Instead, Tapia-Leon asked the district court to exercise its discretion to impose a
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sentence below the applicable Guidelines range because his prior convictions for
illegal transportation of aliens were less serious than the offenses the
enhancement was allegedly designed to deter. Because Tapia-Leon did not object
to any facts contained in the PSR, the district court was permitted to rely on those
facts to support the enhancement. See Keifer, 198 F.3d at 800.
Even if Tapia-Leon’s argument below could be construed as an objection to
the factual basis for the sixteen-level enhancement, the government was not
required to prove, and the district court was not required to find by a
preponderance of the evidence, that Tapia-Leon’s illegal transportation of aliens
convictions involved clandestine movement or concealment. Tapia-Leon pleaded
guilty to illegal reentry by a deported alien after conviction of an aggravated
felony. A defendant convicted of illegal reentry is subject to a sixteen-level
enhancement under USSG § 2L1.2(b)(1)(A)(vii) if he was previously deported, or
unlawfully remained in the United States, after a conviction for a felony alien
smuggling offense. The commentary to § 2L1.2 states that the term “‘alien
smuggling offense’ has the meaning given that term in section 101(a)(43)(N) of
the Im migration and N ationality Act (8 U.S.C. § 1101(a)(43)(N)).” USSG §
2L1.2 app. n.1(B)(I). Section 101(a)(43)(N ) of the Immigration and Nationality
Act in turn applies to
an offense described in paragraph (1)(A) or (2) of section 1324(a) of
this title (relating to alien smuggling), except in the case of a first
offense for which the alien has affirmatively shown that the alien
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committed the offense for the purpose of assisting, abetting, or aiding
only the alien’s spouse, child, or parent (and no other individual) to
violate a provision of this chapter.
8 U.S.C. § 1101(a)(43)(N ). The sixteen-level enhancement therefore is applicable
to any defendant previously deported after a conviction under 8 U.S.C. §
1324(a)(1)(A) or (2), unless that conviction was the defendant’s first alien
smuggling offense and involved only the defendant’s immediate family members.
Tapia-Leon was previously deported after conviction in Illinois on nine
counts of illegal transportation of aliens, in violation of 8 U.S.C. §
1324(a)(1)(A )(ii). Although Tapia-Leon asserts he objected to the factual basis
underlying these convictions, his objection related only to whether his conduct
involved clandestine movement or concealment. He did not claim, nor does he
claim on appeal, that the conduct underlying his convictions was for the purpose
of assisting only his immediate family members. Tapia-Leon’s convictions for
illegal transportation of aliens therefore qualify as alien smuggling offenses under
USSG § 2L1.2(b)(1)(A)(vii), and the district court did not err in applying the
sixteen-level enhancement.
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For the foregoing reasons, Tapia-Leon’s sentence is AFFIRM ED.
ENTERED FOR THE COURT
M ichael R. M urphy
Circuit Judge
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