United States v. Ramos-Garcia ( 1996 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 96-10235
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
JOSE GERARDO RAMOS-GARCIA,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Texas
September 5, 1996
Before JONES, DeMOSS and PARKER, Circuit Judges.
PER CURIAM:
Appellant Jose Gerardo Ramos-Garcia (“Ramos-Garcia”)
challenges the sentence imposed for his conviction for illegal re-
entry into the United States after deportation. Specifically, he
argues that the district court erred in finding that his Texas
state conviction for burglary of a vehicle was an aggravated felony
for purposes of enhancement pursuant to U.S.S.G. § 2L1.2. Finding
no error, we affirm.
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TRIAL COURT PROCEEDINGS
Ramos-Garcia was found guilty after a jury trial of one count
of unlawful re-entry into the United States in violation of 8
U.S.C. § 1326. At sentencing the district court, applying U.S.S.G.
§ 2L1.2 (“Unlawfully Entering or Remaining in the United States”),
calculated Ramos-Garcia’s base offense level at 8, enhanced it by
16 levels because of his previous Texas state court conviction for
burglary of a vehicle and established his total offense level at
level 24. Combined with his criminal history category VI, the
resultant sentencing range was 100-120 months.1 The district court
sentenced him to 120 months imprisonment, three years supervised
release and a $50 special assessment.
DISCUSSION
How the Sentencing Guidelines apply to a particular conviction
is a question of law, which this Court reviews de novo. United
States v. Garcia-Rico, 46 F.3d 8, 9 (5th Cir.), cert. denied 115 S.
Ct. 2596 (1995).
U.S.S.G. § 2L1.2 provides a base offense level 8. The
guideline then states that:
If more than one applies, use the greater:
(1) If the defendant previously was deported after a
conviction for a felony, other than a felony
involving violations of the immigration laws,
increase by 4 levels.
(2) If the defendant previously was deported after a
conviction for an aggravated felony, increase by 16
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The resulting guideline range extended upward to 125 months.
However, the statutory maximum for this offense capped the
sentencing range at 120 months.
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levels.
U.S.S.G. § 2L1.2(b)(Nov. 1995).
Ramos-Garcia was convicted in Texas state court on June 30,
1994 for the offense of Burglary of a Vehicle. Because the state
of Texas punished Ramos-Garcia’s burglary conviction by imposing a
five years probated sentence and because this Court has ruled that
Burglary of a Vehicle constitutes a crime of violence for purposes
of guideline sentencing, the district court reasoned that Ramos-
Garcia was subject to a 16 level enhancement under U.S.S.G. §
2L1.2(b)(2).
In September 1994, the Texas legislature amended Texas law to
reflect that burglary of a vehicle was no longer a felony offense
in Texas. See TEXAS PENAL CODE ANN. § 30.04 (Vernon 1994). At
sentencing, Ramos-Garcia objected to the treatment of his Texas
burglary conviction as an “aggravated felony” for purposes of
U.S.S.G. § 2L1.2(b), relying on the 1994 change in Texas law. The
district court overruled his objections and imposed the
enhancement.
U.S.S.G. § 2L1.2(b) is silent concerning the effects of
subsequent reclassification of otherwise valid predicate state
convictions when determining possible federal sentencing
enhancements. Ramos-Garcia argues that this silence amounts to an
ambiguity, and therefore the district court should have applied the
Rule of Lenity to his sentencing decision and declined to enhance
the sentence under Guideline § 2L1.2's enhancement provisions.
We find his argument unpersuasive. This Court has recently
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held that federal law, rather than state law, controls the
interpretation of U.S.S.G. § 2L1.2. United States v. Vasquez-
Balandran, 76 F.3d 648, 650 (5th Cir. 1996). We must therefore
look to federal law to determine whether Ramos-Garcia’s conviction
was for an “aggravated felony.” See id.The commentary to U.S.S.G. § 2L1.2(b)92) defines “aggravated
felony” as “any crime of violence (as defined in 18 U.S.C. § 16[])
for which the term of imprisonment imposed (regardless of any
suspension of such imprisonment) is at least five years.” § 2L1.2,
comment. (n.7).
The first inquiry, whether Ramos-Garcia’s conviction was for
a crime of violence, has been answered by this Court’s ruling in
United States v. Rodriguez-Guzman, 56 F.3d 18 (5th Cir. 1995).
“Crime of violence” is defined as:
(a) an offense that has as an element the use, attempted use,
or threatened use of physical force against the person or
property of another, or
(b) any other offense that is a felony and that, by its
nature, involves a substantial risk that physical force
against the person or property of another may be used in the
course of committing the offense.
18 U.S.C. § 16(a) & (b) (1988). This Court unequivocally held that
conviction for burglary of a vehicle under § 30.04 of the pre-1994
Texas Penal Code is a crime of violence as defined in 18 U.S.C. §
16(b).
Second, the term of imprisonment imposed, regardless of any
suspension, must be at least five years. Ramos-Garcia was
sentenced to five years of probation for his burglary of a vehicle
conviction. “Clearly, the Sentencing Commission envisioned [§
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2L1.2's] applicability to extend to those defendants who actually
are ordered to serve their sentences and also those defendants who
avoid a determined period of incarceration by a process which
suspends serving the term of imprisonment. United States v.
Vasquez-Balandran, 76 F.3d 648, 651 (5th Cir. 1996). Ramos-
Garcia’s five year probation under Texas’s sentencing procedure
fulfils the five year “term of imprisonment imposed” requirement.
See id.The change in Texas law reclassifying burglary of a vehicle
from a felony to a misdemeanor does not change the nature of the
crime as a crime of violence, nor does it change the five year
probated sentence. Therefore, it does not change the fact that
Ramos-Garcia’s conviction meets the federal definition of
aggravated felony. The sentence imposed by the district court is
AFFIRMED.
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