United States v. Huerta-Gandara ( 1999 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
____________________
No. 98-50948
Summary Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
OSCAR HUERTA-GANDARA,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Western District of Texas
(EP-98-CR-338-ALL-H)
_________________________________________________________________
June 3, 1999
Before KING, Chief Judge, JONES and DAVIS, Circuit Judges.
PER CURIAM:*
Oscar Huerta-Gandara pleaded guilty to one count of illegal
re-entry following deportation, in violation of 8 U.S.C. § 1326.
The district court subsequently sentenced appellant to seventy
months of imprisonment. In sentencing Huerta-Gandara, the
district court applied United States Sentencing Guideline
(U.S.S.G.) § 2L1.2(b)(1)(A), which increases a defendant’s
*
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this opinion should not be published and is not precedent except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.
offense level by sixteen if the defendant was previously deported
after a conviction for an aggravated felony offense, based on
Huerta-Gandara’s 1993 conviction for burglary of a vehicle in
Texas state court. Huerta-Gandara then filed a motion pursuant
to 18 U.S.C. § 3742 to resentence, based on his argument that his
conviction for burglary of a vehicle did not qualify as an
aggravated felony, as that term is defined in 8 U.S.C.
§ 1101(a)(43)1, because he had not been sentenced to a term of
imprisonment greater than five years.
Huerta-Gandera’s only argument on appeal is that the
district court erred in applying U.S.S.G. § 2L1.2(b) because
there is insufficient evidence that his prior conviction for
burglary of a vehicle qualifies as an aggravated felony. In
support, he points to the first page of the state-court judgment
in his burglary case, which states that his “Punishment and Place
of Confinement” was “NINE (9) YEARS A/P.” He argues that it is
ambiguous from the state-court judgment whether the state court
sentenced him to a term of imprisonment, and therefore that the
district court erred in increasing his offense level pursuant to
under § 2L1.2(b).
The district judge properly rejected Huerta-Gandera’s
contention. Although it is arguably difficult to tell from the
first page of the state-court judgment whether appellant was
1
The definition of aggravated felony was amended by the
Illegal Immigration Reform and Immigrant Responsibility Act of
1996, Pub. L. No. 104-208, § 321(a)(3), 110 Stat. 3009, 546, 627-
28 (1997). The parties agree that the pre-amendment definition
of aggravated felony applies to this case.
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sentenced to a term of imprisonment greater than five years, the
second page of the judgment makes clear that he was sentenced to
a term of imprisonment “in the Texas Department of Criminal
Justice - Institutional Division (County Jail) for NINE (9)
YEARS,” and that this sentence was suspended in favor of adult
probation. This language was sufficient for the district court
to conclude that Huerta-Gandera had been sentenced to a term of
imprisonment greater than five years, and thus that the
appellant’s prior conviction was an aggravated felony under
§ 1101(a)(43). See United States v. Vasquez-Balandran, 76 F.3d
648, 651 (5th Cir. 1996) (affirming district court’s application
of § 1101(a)(43) based on that almost-identical language in a
Texas judgment). The district judge thus properly applied the
sixteen-level increase in § 2L1.2(b). Therefore, the judgment of
the district court is AFFIRMED.
3