United States v. Garza-Garza ( 2002 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 00-41118
_____________________
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
AMARO GARZA GARZA
Defendant - Appellant
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
No. L-00-CR-464-1
_________________________________________________________________
February 27, 2002
Before KING, Chief Judge, and REAVLEY and WIENER, Circuit Judges.
PER CURIAM:*
Defendant Amaro Garza-Garza appeals his sentence imposed by
the district court for a violation of 8 U.S.C. § 1326. For the
following reasons, we AFFIRM.
*
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opinion should not be published and is not precedent except under the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.
1
I. Factual and Procedural History
Amaro Garza-Garza pleaded guilty to illegal reentry after
deportation, a violation of 8 U.S.C. § 1326(a). Violations of
§ 1326(a) are generally punishable by up to two years in prison.1
If the defendant was deported after being convicted of an
aggravated felony, however, § 1326(b)(2) increases the maximum
term of imprisonment to twenty years.2 The sentencing guideline
applicable to § 1326 calls for a base offense level of eight.
U.S. SENTENCING GUIDELINES MANUAL § 2L1.2(a) (1998). This base
1
Section 1326(a) reads in relevant part:
(a) [A]ny alien who –
(1) has been denied admission, excluded,
deported, or removed or has departed the
United States while an order of
exclusion, deportation, or removal is
outstanding, and thereafter
(2) enters, attempts to enter, or is at
any time found in, the United States,
unless . . . the Attorney General has
expressly consented to such alien’s
reapplying for admission . . .
shall be fined under Title 18, or imprisoned
not more than 2 years, or both.
8 U.S.C. § 1326(a) (1994).
2
Section 1326(b) reads in relevant part:
(b) Notwithstanding subsection (a) of this
section, in the case of any alien described
in such subsection –
. . .
(2) whose removal was subsequent to a
conviction for commission of an
aggravated felony, such alien shall be
fined under such Title, imprisoned not
more than 20 years, or both.
. . .
8 U.S.C. § 1326(b) (1994).
2
offense level is increased by sixteen levels if the defendant has
a prior aggravated-felony conviction. Id. at § 2L1.2(b)(1)(A).
In Garza-Garza’s case, the Presentence Investigation Report (the
“PSR”) recommended a base offense level of eight, an increase of
sixteen levels because of two prior aggravated-felony
convictions, and a decrease of three levels because of Garza-
Garza’s acceptance of responsibility, for a total offense level
of twenty-one. In support of the sixteen-level increase, the PSR
listed Garza-Garza’s felony conviction for driving while
intoxicated (“DWI”) and his felony conviction for cocaine
possession.
The district court adopted the findings of the PSR and
sentenced Garza-Garza to seventy-seven months of imprisonment,
three years of supervised release, and a special assessment of
$100.3 Garza-Garza timely appeals his sentence, arguing that:
(1) the district court improperly classified his felony DWI
conviction as an aggravated felony and thus improperly enhanced
his sentence, and (2) the district court improperly enhanced his
sentence for a prior aggravated-felony conviction because his
indictment for the reentry offense did not allege such a
conviction.
3
This term of imprisonment is within the range applicable to an
offense level of twenty-one and a criminal history category of V. U.S.
SENTENCING GUIDELINES MANUAL Ch.5, Part A (sentencing table).
3
II. Garza-Garza’s United States v. Chapa-Garza Claim
Garza-Garza’s primary argument before this court is that the
district court improperly considered his felony DWI conviction to
be an aggravated felony and thus improperly enhanced his
sentence. Because Garza-Garza raises this argument for the first
time on appeal, we review Garza-Garza’s sentence for plain error.
United States v. Calverley, 37 F.3d 160, 162 (5th Cir. 1994) (en
banc). We find plain error only if (1) there was an error (2)
that was clear and obvious and (3) that affected the defendant’s
substantial rights. United States v. Olano, 507 U.S. 725, 732
(1993). When these elements are present, we may exercise our
discretion to correct the error only if it “seriously affect[s]
the fairness, integrity, or public reputation of judicial
proceedings.” Id. (internal citations and quotations omitted).
Under the sentencing guidelines applicable to illegal re-
entry convictions under § 1326, a sixteen-level enhancement is
proper if the defendant’s prior deportation followed a conviction
for an “aggravated felony.” U.S. SENTENCING GUIDELINES MANUAL
§ 2L1.2(b)(1)(A). The commentary to § 2L1.2 of the sentencing
guidelines adopts the definition of “aggravated felony” in 8
U.S.C. § 1101(a)(43). Under that definition, “aggravated felony”
includes “a crime of violence.” 8 U.S.C. § 1101(a)(43)(F)
(1994). At the time of Garza-Garza’s sentencing, this court’s
precedent suggested that Garza-Garza’s felony DWI conviction was
4
properly classified as an aggravated-felony conviction. See
Camacho-Marroquin v. I.N.S., 188 F.3d 649, 652 (5th Cir. 1999),
opinion withdrawn and reh’g dismissed, 222 F.3d 1040 (2000)
(determining that a felony DWI in Texas is a crime of violence
and thus an aggravated felony); see also United States v.
DeSantiago-Gonzalez, 207 F.3d 261, 264 (5th Cir. 2000) (holding
that misdemeanor DWI’s are crimes of violence under a different
sentencing guideline). Consistent with this precedent, the PSR
classified Garza-Garza’s felony DWI conviction as an aggravated-
felony conviction and recommended an offense level increase of
sixteen.4 The district court adopted the PSR’s recommendations.
In light of Camacho-Marroquin and DeSantiago-Gonzalez, Garza-
Garza did not challenge the sixteen-level enhancement in the
district court.
On March 1, 2001, after Garza-Garza’s sentencing, this court
held that a felony DWI in Texas is not a crime of violence and,
therefore, is not an aggravated felony under § 2L1.2(b)(1)(A) of
the sentencing guidelines. United States v. Chapa-Garza, 243
F.3d 921, 927 (5th Cir. 2001).5 Thus, a prior felony DWI
conviction cannot support an offense-level increase of sixteen in
4
In support of its recommended sixteen-level enhancement, the PSR
also listed Garza-Garza’s felony conviction for cocaine possession.
5
In August 2001, we denied the government’s petition for rehearing
in Chapa-Garza. Thus, the government’s request that this court defer its
decision in this case until it renders a decision on that petition for
rehearing is moot.
5
illegal re-entry cases. Assuming that the district court in this
case relied exclusively on Garza-Garza’s felony DWI conviction in
adopting the PSR’s recommended sixteen-level enhancement, the
district court, albeit understandably, committed a clear and
obvious error.6 Furthermore, without a prior aggravated-felony
conviction, Garza-Garza’s total offense level would have been
ten: a base offense level of eight, a four-level increase for a
prior “nonaggravated” felony conviction, and a two-level
reduction for acceptance of responsibility. U.S. SENTENCING
GUIDELINES MANUAL §§ 2L1.2(a), (b)(1)(B) & 3E1.1(a).7 An offense
level of ten corresponds to an imprisonment range of twenty-one
to twenty-seven months. Id. at Ch.5, Part A (sentencing table).
In contrast, the offense level of twenty-one assigned to Garza-
Garza corresponds to an imprisonment range of seventy to eighty-
seven months, id., and the district court sentenced Garza-Garza
to seventy-seven months of imprisonment. Assuming Garza-Garza’s
sentence resulted from the incorrect classification of his felony
DWI conviction as an aggravated-felony conviction, the dramatic
6
It is not clear from the record whether the district court enhanced
Garza-Garza’s sentence because of his DWI conviction, his cocaine
conviction, or both. For purposes of our analysis, we give Garza-Garza the
benefit of the doubt and assume that the district court based the sixteen-
level enhancement exclusively on Garza-Garza’s DWI conviction.
7
A defendant with a total offense level of ten is entitled to a two-
level reduction for acceptance of responsibility. U.S. SENTENCING GUIDELINES
MANUAL § 3E1.1(a). A defendant with a total offense level greater than
sixteen, however, may qualify for a three-level reduction for acceptance of
responsibility. Id. at § 3E1.1(b).
6
increase in the recommended imprisonment range and in Garza-
Garza’s actual term of imprisonment affected his substantial
rights. United States v. Williamson, 183 F.3d 458, 464 (5th Cir.
1999) (concluding that a twofold increase in prison time affected
the defendant’s substantial rights). Even faced with a clear and
obvious error that affected Garza-Garza’s substantial rights,
however, we will correct the error only if it seriously affects
the fairness, integrity, or public reputation of the judicial
proceedings. Olano, 507 U.S. at 732.
In addition to the felony DWI conviction, Garza-Garza was
convicted of possession of cocaine prior to deportation and
sentenced to six years of imprisonment. This felony cocaine
conviction is an aggravated felony for purposes of the sixteen-
level enhancement under § 2L1.2(b)(1)(A) of the sentencing
guidelines. United States v. Hinojosa-Lopez, 130 F.3d 691, 694
(5th Cir. 1997). Thus, if we vacate Garza-Garza’s sentence and
remand for resentencing, the district court could permissibly
rely on Garza-Garza’s aggravated-felony cocaine conviction to
reinstate the sentence of seventy-seven months of imprisonment.
When reviewing for plain error, we uphold a defendant’s sentence
if the district court could reinstate the same sentence on remand
by relying on a reasonable application of the sentencing
guidelines. United States v. Ravitch, 128 F.3d 865, 871 (5th
Cir. 1997). Accordingly, the district court’s erroneous
7
classification of Garza-Garza’s felony DWI conviction did not
seriously affect the fairness, integrity, or public reputation of
the judicial proceedings in this case, and we decline to vacate
Garza-Garza’s sentence on that ground.8
III. Garza-Garza’s Apprendi v. New Jersey Claim
Citing Apprendi v. New Jersey, 530 U.S. 466 (2000), Garza-
Garza argues that, because the indictment did not allege a prior
aggravated-felony conviction, the district court erred in
imposing a sentence in excess of the two-year statutory maximum
sentence under 8 U.S.C. § 1326(a).9 Garza-Garza raised his
Apprendi objection before the district court at sentencing. We
review de novo Garza-Garza’s challenge to the sufficiency of the
8
Garza-Garza argues that this court should not affirm his sentence
on an alternative ground because he had no opportunity at sentencing to
object to an enhancement based upon his cocaine conviction. This argument
is unpersuasive because the PSR listed the cocaine conviction in support of
its recommendation of the sixteen-level enhancement. Garza-Garza did not
object to that portion of the PSR.
9
The indictment reads:
On or about December 16, 1999, in the
Southern District of Texas and within the
jurisdiction of the Court, Defendant, AMARO
GARZA-GARZA, an alien who had previously been
denied admission, excluded, deported, or
removed, or has departed the United States
while an order of exclusion, deportation or
removal is outstanding, and having not
obtained the consent of the Attorney General
of the United States for reapplication by the
Defendant for admission into the United
States, thereafter entered the United States.
In violation of Title 8, United States Code,
Section 1326.
8
indictment and to the legality of the district court’s imposition
of his sentence. See United States v. Cabrera-Teran, 168 F.3d
141, 143 (5th Cir. 1999) (reviewing de novo a challenge to the
sufficiency of the indictment); see also United States v. A
Female Juvenile, 103 F.3d 14, 15 n.1 (5th Cir. 1996) (reviewing
de novo a challenge to the legality of the district court’s
imposition of a criminal sentence).10
In Almendarez-Torres v. United States, 523 U.S. 224, 226-27
(1998), the Supreme Court held that an indictment in an illegal
re-entry case need not allege a defendant’s prior aggravated-
felony conviction in order for the district court to enhance the
defendant’s sentence under § 1326(b)(2).11 Although the Court’s
recent decision in Apprendi states that “it is arguable that
Almendarez-Torres was incorrectly decided,” the Apprendi Court
explicitly declined to overrule Almendarez-Torres. Apprendi, 530
U.S. at 489-90; see also United States v. Dabeit, 231 F.3d 979,
984 (5th Cir. 2000) (noting that the Supreme Court in Apprendi
“expressly declined to overrule Almendarez-Torres”). Thus, we
10
The government argues that we should review Garza-Garza’s Apprendi
claim for plain error because Garza-Garza “never contested the adequacy of
the notice of the applicability of the statute inasmuch as the statute, 8
U.S.C. § 1326, was correctly cited in the indictment.” This argument fails
because “statutory citations may not stand in place of the inclusion of an
element of the crime.” Cabrera-Teran, 168 F.3d at 145. Thus, Garza-Garza
is entitled to de novo review concerning whether the indictment supports
his enhanced sentence.
11
Garza-Garza concedes that his Apprendi claim is foreclosed by the
Court’s holding in Almendarez-Torres. However, Garza-Garza raises the
claim in this court to preserve the issue for Supreme Court review.
9
must apply the holding of Almendarez-Torres to Garza-Garza’s
claim “unless and until the Supreme Court itself determines to
overrule it.” Dabeit, 231 F.3d at 984 (internal citations and
quotations omitted). Accordingly, the district court did not err
in enhancing Garza-Garza’s sentence beyond the two-year statutory
maximum under § 1326(a) even though Garza-Garza’s prior
aggravated-felony conviction was not alleged in the indictment.
IV. Conclusion
For the foregoing reasons, we AFFIRM Garza-Garza’s sentence.
10