United States v. Bustillo-Delgado ( 2002 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-40114
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
NELSON OSIRIS BUSTILLO-DELGADO,
Defendant-Appellant.
Appeal from the United States District Court
For the Southern District of Texas
(01-CR-971)
December 6, 2002
Before HIGGINBOTHAM, SMITH, and CLEMENT, Circuit Judges.
PER CURIAM:*
Nelson Osiris Bustillo-Delgado appeals the sentence imposed
after he pleaded guilty to illegal reentry following deportation. We
find that the district court did not err in calculating his sentence,
and therefore we affirm the district court.
I
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion
should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
Bustillo-Delgado pleaded guilty to count two of an indictment
charging him with illegal reentry following deportation, a violation
of 8 U.S.C. § 1326(a). Because Bustillo-Delgado had been convicted
by an Oklahoma state court prior to deportation for possession of a
stolen vehicle, Bustillo-Delgado’s offense level was increased by
eight levels, pursuant to U.S.S.G. § 2L1.2(b)(1)(C).1
II
Bustillo-Delgado contends that the district court erred by
concluding that his prior conviction for possession of a stolen
vehicle was an “aggravated felony” under U.S.S.G. § 2L1.2(b)(1)(C).
We review the trial court's application of the United States
Sentencing Guidelines de novo and its factual findings for clear
error.2
The commentary to § 2L1.2 adopts the definition of the term
“aggravated felony” in 8 U.S.C. § 1101(a)(43).3 Under
§ 1101(a)(43)(G), the term “aggravated felony” is defined to include,
“a theft offense (including receipt of stolen property) or burglary
offense for which the term of imprisonment [is] at least one year .
. . .”4 Bustillo-Delgado does not dispute that his crime constitutes
1
U.S. Sentencing Guidelines Manual § 2L1.2(b)(1)(C) (2001).
2
See United States v. Alarcon, 261 F.3d 416, 423 (5th Cir. 2001).
3
See U.S. Sentencing Guidelines Manual § 2L1.2(b)(1)(C), cmt. n.2.
4
8 U.S.C. § 1101(a)(43)(G) (2000).
2
a theft, and therefore the only issue is whether his term of
imprisonment was “at least one year.”
Bustillo-Delgado contends that § 1101(a)(43)(G) should be
interpreted in light of Sentencing Guideline Manual Note 1(A)(iv),
which provides, for purposes of § 2L1.2(b)(1), “If all or any part of
a sentence of imprisonment was probated, suspended, deferred, or
stayed, ‘sentence imposed’ refers only to the portion that was not
probated, suspended, deferred, or stayed.”5 Because all but the first
90 days of his 2-year sentence of confinement for the state
conviction was suspended, Bustillo-Delgado contends his “term of
imprisonment” was not “at least one year” and the possession-of-a-
stolen-vehicle conviction was not an “aggravated felony” within the
meaning of § 1101(a)(43)(G).
Note 1(A)(iv) was added by amendment 632 to the guidelines,
effective November 1, 2001.6 Bustillo-Delgado argues that the
Sentencing Commission, in adopting amendment 632, rejected this
court’s holding in United States v. Banda-Zamora.7 Bustillo-Delgado
also argues that the adoption of Note 1(A)(iv) created an ambiguity
which should be resolved in his favor under the Rule of Lenity.
5
U.S. Sentencing Guidelines Manual § 2L1.2(b)(1)(C), cmt. n.1(A)(iv)
(2001).
6
See U.S. Sentencing Guidelines Manual , Supp. to App. C, amend. 632
(2001).
7
178 F.3d 728 (5th Cir. 1999).
3
In Banda-Zamora, this court construed the meaning of the 8
U.S.C. § 1101(a)(43)(F).8 Like § 1101(a)(43)(G), which is at issue
here, § 1101(a)(43)(F) provides that certain crimes of violence “for
which the term of imprisonment [is] at least one year” are aggravated
felonies.9 The phrase “term of imprisonment” is defined by §
1101(a)(48)(B) which provides that:
Any reference to a term of imprisonment or a sentence with
respect to an offense is deemed to include the period of
incarceration or confinement ordered by a court of law
regardless of any suspension of the imposition or execution
of that imprisonment or sentence in whole or in part.”10
The court in Banda-Zamora reasoned, “Because § 1101 offers a series
of definitions applicable to the entire chapter, the definition in §
1101(a)(48)(B) applies recursively to the definition in §
1101(a)(43)(F).”11 Under the reasoning of Banda-Zamora, §
1101(a)(48)(B) also applies to § 1101(a)(43)(G). Therefore, the fact
that Bustillo-Delgado’s sentence was suspended does not change the
fact that his crime fits the definition of aggravated felony in §
1101(a)(43).
We do not find any support for the argument that the amendment
to the sentencing guideline overruled Banda-Zamora. Note 1(A)(iv)
defines the term “sentence imposed” as used in § 2L1.2(b) of the
8
Id. at 730.
9
8 U.S.C. § 1101(a)(43)(F) (2000).
10
8 U.S.C. § 1101(a)(48)(B) (2000)(emphasis added).
11
Banda-Zamora, 178 F.3d at 730.
4
sentencing guidelines. Only § 2L1.2(b)(1)(A) & (B) uses the term
“sentence imposed,” and it is used in distinguishing between certain
felony drug trafficking offenses.12 The subsection of the guidelines
at issue here, § 2L1.2(b)(1)(C), does not use the term “sentence
imposed.” Therefore there is no reason to apply Note 1(A)(iv) to §
2L1.2(b)(1)(C). Instead, the definition of aggravated felon adopted
by the sentencing guidelines must be applied. That definition is the
one given in 8 U.S.C. § 1101(a), as interpreted by this court in
Banda-Zamora, and it calculates the period of incarceration or
confinement without regard to any suspension of the sentence in whole
or in part.13
III
Bustillo-Delgado contends that the sentence-enhancing provisions
of 8 U.S.C. § 1326(b)(1) and (b)(2) are unconstitutional in light of
Apprendi.14 Although he concedes that he did not raise this issue
below, he asserts that if the unconstitutional portion of the statute
were severed, his conviction should be reduced to a lesser-included-
offense found under § 1326(a). Bustillo-Delgado acknowledges that
his arguments are foreclosed by Almendarez-Torres v. United States,15
but he seeks to preserve the issue for Supreme Court review.
12
See U.S. Sentencing Guidelines Manual § 2L2.1(b)(1)(A) & (B).
13
See also United States v. Landeros-Arreola, 260 F.3d 407, 410 (5th Cir.
2001); United States v. Yanez-Huerta, 207 F.3d 746, 749 (5th Cir. 2000).
14
Apprendi v. New Jersey, 530 U.S. 466 (2000).
15
523 U.S. 224 (1998).
5
In Almendarez-Torres, the Supreme Court held that the fact of a
prior aggravated felony was a sentencing factor rather than an
element of the offense.16 Apprendi did not overrule Almendarez-
Torres.17 This court must follow the precedent set in Almendarez-
Torres “unless and until the Supreme Court itself determines to
overrule it.”18
For the reasons stated above, we AFFIRM the district court's
sentencing of the appellant.
16
Id. at 235.
17
See Apprendi, 530 U.S. at 489-90; United States v. Dabiet, 231 F.3d 979,
984 (5th Cir. 2000) cert. denied, 531 U.S. 1202 (2001).
18
Dabiet, 231 F.3d at 984(internal quotation and citation omitted).
6