United States v. Bautista-Garcia , 284 F. App'x 141 ( 2008 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
July 2, 2008
No. 07-30631
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
ALBINO BAUTISTA-GARCIA
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 6:06-CR-60052-1
Before KING, DeMOSS, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Albino Bautista-Garcia pleaded guilty to illegal reentry following
deportation in violation of 8 U.S.C. § 1326(b)(2). Bautista-Garcia argues that the
district court erred in imposing a 16-level enhancement pursuant to U.S.S.G.
§ 2L1.2(b)(1)(A)(ii) based on Bautista-Garcia’s prior Texas conviction for sexual
assault of a minor and indecency with a child. This court reviews de novo a
district court’s interpretation or application of the sentencing guidelines; factual
*
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should not be published and is not precedent except under the limited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.
No. 07-30631
findings are reviewed for clear error. United States v. Griffith, 522 F.3d 607, 611
(5th Cir. 2008)
Section 2L1.2 of the Sentencing Guidelines provides for a 16-level increase
in the defendant’s base offense level if the defendant was previously deported
after a conviction for a crime of violence (COV). § 2L1.2(b)(1)(A)(ii). For
purposes of that section, COV is defined in the application notes and specifically
includes “sexual abuse of a minor.” § 2L1.2, application note 1 (B)(iii). Section
2L1.2 alternatively provides for an eight-level increase in the defendant’s base
level if the defendant was deported following a conviction for an aggravated
felony. § 2L1.2(b)(1)(C). The application notes incorporate by reference the
definition for aggravated felony set forth in § 1101(a)(43), which section also
specifically includes “sexual abuse of a minor” within that definition.
§ 1101(a)(43); § 2L1.2, Application Note 3(A). Section 2L1.2 expressly provides
that the district court should “apply the greatest” of any applicable specific
offense characteristics. § 2L1.2(b)(1). In addition, the Guidelines’s general
application principles require the district court to apply the guideline provision
that results in the highest sentence. U.S.S.G. § 1B1.1, Application Note 5.
Bautista-Garcia does not contend that his prior Texas convictions for
sexual assault of a minor and indecency with a child not meet the definitions for
both a crime of violence and an aggravated felony as those terms are defined in
the application notes to § 2L1.2. Instead, Bautista-Garcia asserts that the
definitions for COV and aggravated felony provided in the applications notes to
§ 2L1.2 conflict with the definition for aggravated felony provided in
§ 1101(a)(43). Bautista-Garcia argues that, as a result of this conflict, the rule
of lenity applies, requiring that the more lenient enhancement be applied to his
base offense level.
The rule of lenity applies only when, “after consulting traditional canons
of statutory construction,” the court is left with a truly ambiguous statute.
United States v. Rivera, 265 F.3d 310, 312 (5th Cir. 2001). Although this court
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No. 07-30631
has considered application of the rule of lenity to Guidelines provisions, the rule
is applicable only where the meaning of the provision is not plain. Id. at 312-13.
Accordingly, the rule of lenity is inapplicable in the instant case.
Under the plain language of the § 2L1.2, if a prior conviction falls in two
categories of enhancements, the greater enhancement applies. Therefore, while
Bautista-Garcia’s prior conviction for sexual assault with a minor may be an
aggravated felony that qualifies for an eight-level enhancement, it is also a crime
of violence that qualifies for a 16-level enhancement. See United States v. Rayo-
Valdez, 302 F.3d 314, 320 (5th Cir. 2002); see also United States v. Zavala-
Sustaita, 214 F.3d 601, 604-08 (5th Cir. 2000). As a result, because § 2L1.2
advises the district court to apply the greater of the applicable enhancements,
the district court did not err in applying the 16-level COV enhancement to
Bautista-Garcia’s base offense level.
AFFIRMED.
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