United States v. Mota-Aguirre ( 1999 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 98-41136
_____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MIGUEL ANGEL MOTA-AGUIRRE,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Eastern District of Texas
_________________________________________________________________
August 17, 1999
Before JOLLY and SMITH, Circuit Judges, and TOM STAGG,* District
Judge.
E. GRADY JOLLY, Circuit Judge:
The appellant, Miguel Angel Mota-Aguirre, was sentenced to 87
months of imprisonment for one count of illegal reentry into the
United States after deportation in violation of 8 U.S.C. § 1326(a)
and (b)(2). He only appeals his sentence. Previously, on
October 31, 1983, Mota was issued an “Out-of-Country Conditional
Pardon” by the governor of Texas after being convicted in Texas
state district court of three separate counts of indecency with a
child. Mota violated the conditions of this pardon by illegally
reentering the United States. On appeal, Mota challenges the
*
District Judge of the Western District of Louisiana, sitting
by designation.
district court’s calculation of his criminal history score under §§
4A1.1(d) and 4A1.2(a)(2) of the United States Sentencing
Guidelines. Mota contends that the district court erred in
concluding that his conditional pardon constituted a criminal
justice sentence under U.S.S.G. § 4A1.1(d). Next, Mota argues that
his convictions for indecency with a child are “related” for the
purposes of U.S.S.G. § 4A1.2(a)(2) and, therefore, the district
court erred in adding six points to his criminal history score. We
disagree. The terms of Mota’s conditional pardon and Texas law
both make clear that his pardon is best analogized to parole, which
is listed as a criminal justice sentence under the guideline.
Additionally, under United States v. Garcia, 962 F.2d 479 (5th Cir.
1992), Mota’s characterization of his indecency convictions as
“related” is meritless. Consequently, we affirm Mota’s sentence in
all respects.
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I
A
Miguel Angel Mota-Aguirre is a Mexican national. On
September 18, 1980, he was arrested and charged with two separate
counts of indecency with a child in Jefferson County, Texas. Mota
committed the offenses on September 25, 1979, and September 15,
1980. He pled no contest to the charges on April 28, 1981, and on
May 15, 1981, the Texas state district court sentenced him to
deferred adjudication on each offense. The Texas state district
court revoked Mota’s probation on October 22, 1981, when he
committed a third child indecency offense. Consequently, on
January 15, 1982, Mota was sentenced to eight years of imprisonment
on each of the three indecency convictions and was incarcerated at
the Texas Department of Corrections. Each of Mota’s sentences was
to run concurrently.
Next, on October 31, 1983, the governor of Texas issued Mota
an “Out-of-Country Conditional Pardon,” whereby he was released
from prison into the custody of the Immigration and Naturalization
Service,(“INS”), for immediate deportation. In accordance with the
terms of the pardon, Mota was deported to the Republic of Mexico on
December 17, 1983. The conditional pardon further provided that if
Mota returned to the United States illegally at any time, his
pardon would be revoked and he would be returned to the Texas
Department of Corrections. Notwithstanding the largesse, and the
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threat, of the governor, Mota’s absence from this country proved to
be short-lived.
On July 25, 1997, the Jefferson County sheriff’s office
notified the INS that Mota, suspected of being an illegal alien,
was being held in the Jefferson County jail in Beaumont, Texas.
During a jailhouse interview with the INS, Mota admitted that he
had illegally reentered the United States in June 1984,
approximately six months after his conditional pardon.
B
On February 11, 1998, Mota was indicted on one count of
illegal reentry into the United States after deportation under 8
U.S.C. § 1326(a) and (b)(2).1 Mota pled guilty to the charge on
June 8, 1998, and on September 11, 1998, he was sentenced to 87
months of imprisonment followed by three years of supervised
release. In calculating Mota’s sentence, the district court added
a two-point increase to Mota’s criminal history score under
U.S.S.G. § 4A1.1(d), because he was under a criminal justice
sentence at the time of his offense; that is, when Mota illegally
reentered the United States his conditional pardon was subject to
revocation. Furthermore, the district court treated two of Mota’s
convictions for indecency with a child as unrelated offenses under
U.S.S.G. § 4A1.2(a)(2) and, in doing so, assigned him six criminal
1
Mota’s conditional pardon was revoked on April 2, 1998.
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history points under the guideline. Mota has timely appealed the
sentence.
II
A
On appeal, Mota argues that the district court erred in
increasing his criminal history score by two under U.S.S.G.
§ 4A1.1(d) because he was not under a criminal justice sentence
when he illegally reentered the United States. Specifically, Mota
contends that at the time of the offense, he had been granted a
conditional pardon, which contained no probation nor supervised
release requirement. Mota therefore maintains that his conditional
pardon does not qualify as a criminal justice sentence for the
purposes of the guideline.
U.S.S.G. § 4A1.1(d) instructs that the sentencing court “add
2 points if the defendant committed the instant offense while under
any criminal justice sentence, including probation, parole,
supervised release, imprisonment, work release, or escape status.”
The term "criminal justice sentence" is defined in the commentary
to the guideline as "a sentence . . . having a custodial or
supervisory component, although active supervision is not required
for this item to apply." U.S.S.G. § 4A1.1(d), comment. (n.4).
Neither the plain language of the criminal history guideline
nor its commentary, however, addresses the issue of first
impression presented by this appeal--whether under U.S.S.G.
§ 4A1.1(d) a conditional pardon constitutes a criminal justice
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sentence. We agree with the district court that for the purposes
of calculating Mota’s criminal history score, his conditional
pardon was the functional equivalent of parole. Indeed, under
Texas law, parole is generally classified as a conditional pardon.
Ex parte Lefors, 303 S.W.2d 394, 397 (Tex. Crim. App. 1957)
(citations omitted). See also Clifford v. Beto, 464 F.2d 1191,
1194 (5th Cir. 1972) (citations omitted) (noting same). This is so
because parole and conditional pardons bear almost identical
characteristics. For example, while the conditional pardon exempts
a defendant from punishment, parole conditionally releases a
defendant from further punishment. Lefors, 303 S.W.2d at 397.
Furthermore, although Mota received a pardon from his convictions,
like parole, his sentence remained in effect while he was granted
liberty from confinement–-but so long as he abided by the specified
restrictions contained in his pardon. Cf. id. We are therefore
satisfied that for the purposes of U.S.S.G. § 4A1.1(d), there
exists no significant difference between parole and a conditional
pardon.
Finally, we find no merit in Mota’s position that his
conditional pardon contained no supervisory requirement. Although
Mota’s conditional pardon did not require active supervision, his
pardon included a supervisory component in that the governor
retained the power to revoke Mota’s pardon upon a breach of its
conditions and to remand the alien defendant to the custody of the
Texas Department of Corrections. We are satisfied that this kind
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of supervisory component is sufficient to bring Mota’s conditional
pardon within the purview of U.S.S.G. § 4A1.1(d). See United
States v. Labella-Szuba, 92 F.3d 136, 138 (2d Cir.), cert. denied,
519 U.S. 1047 (1996) (holding the sentencing court’s authority to
revoke the defendant’s conditional discharge constituted sufficient
supervision within the meaning of “criminal justice sentence” under
the guideline). In any event, Texas law makes certain that Mota’s
conditional pardon contained some aspect of supervision. See Tex.
Gov. Code Ann. § 508.114(b)(“A parole officer or supervisor, on the
request of the governor . . . shall be responsible for supervising
an inmate placed on conditional pardon . . . .”).
In sum, we conclude that the district court properly
classified Mota’s conditional pardon as a criminal justice sentence
under the criminal history guideline, U.S.S.G. § 4A1.1(d).
III
Mota’s second argument is that the district court erred in
treating his two prior convictions for indecency with a child as
“unrelated” when calculating his criminal history score under
U.S.S.G. § 4A1.2(a)(2).
U.S.S.G. § 4A1.2(a)(2) provides that “prior sentences imposed
in unrelated cases are to be counted separately. Prior sentences
imposed in related cases are to be treated as one sentence for the
purposes of [assigning criminal history points under] § 4A1.1(a),
(b), and (c).” Under the guideline, "prior sentences are
considered related if they resulted from offenses that: (1)
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occurred on the same occasion; (2) were part of a single common
scheme or plan; or (3) were consolidated for trial or sentencing."
U.S.S.G. § 4A1.2, comment. (n.3).
We are satisfied that none of these categories are applicable
to the instant appeal. Indeed, Mota’s objection to the district
court’s application of U.S.S.G. § 4A1.2(a)(2) is foreclosed by
United States v. Garcia, 962 F.2d 479 (5th Cir. 1992). In Garcia,
962 F.2d at 482, we held that although the facts surrounding the
cases may be similar, similar crimes are not necessarily related
crimes. (Citations and internal quotations omitted). Thus, to
prevail on his relatedness argument, Mota must show more than a
mere factual relationship between the child indecency crimes. Id.
This he has not done. We therefore reject Mota’s argument that
both of his state court convictions were part of a common scheme or
plan. Not only did each of the indecency offenses involve two
different victims, but contrary to Mota’s argument on appeal, the
crimes also occurred approximately one year apart. The record
makes clear that Mota first exposed himself to a child on
September 25, 1979, and that he committed the offense a second time
on September 15, 1980. The similarity in the crimes, however, does
nothing to advance Mota’s argument on appeal. The fact that the
defendant repetitiously commits the same offense, in and of itself,
is insufficient to establish a common scheme for the purposes of
U.S.S.G. § 4A1.2(a)(2). See United States v. Ford, 996 F.2d 83, 86
8
(5th Cir.), cert. denied, 510 U.S. 1050 (1994); Garcia, 962 F.2d at
482.
We similarly find no support for Mota’s consolidation
argument. We have previously rejected the proposition that cases
must be considered consolidated simply because two convictions have
concurrent sentences. Garcia, 962 F.2d at 482 (citations and
internal quotations omitted). Likewise, the “‘sentencing [of] two
distinct cases on the same day [does not] necessitate[] a finding
that they are consolidated.’” Id. (citing United States v.
Metcalf, 898 F.2d 43, 46 (5th Cir. 1990)). As a matter of fact,
nothing in the record can be read to suggest that Mota’s state
court cases for indecency with a child were consolidated: Each of
the cases was assigned a separate docket number. The state of
Texas never moved the state district court under Tex. Penal Code
§ 3.02 to consolidate the two cases. Nor did the Texas state
district court enter an order of consolidation. We have previously
recognized that such factors belie the defendant’s contention that
his cases were consolidated for sentencing purposes. See United
States v. Huskey, 137 F.3d 283, 285-86 (5th Cir. 1998) (citing
cases, which rejected consolidation argument where defendant
sentenced under different docket numbers and there existed no order
of consolidation); Garcia, 962 F.2d at 483 (holding same).
Accordingly, the district court properly concluded that Mota’s
child indecency convictions were unrelated under U.S.S.G.
§ 4A1.2(a)(2).
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We therefore find no error in the district court’s calculation
of Mota’s criminal history score under the sentencing guidelines.
We therefore AFFIRM the sentence imposed and the judgment entered
by the district court.
A F F I R M E D.
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