United States v. Vicente Cuevas-Lopez ( 2019 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 17-10438
Plaintiff-Appellee,
D.C. No.
v. 4:17-cr-00306-
JGZ-DTF-1
VICENTE CUEVAS-LOPEZ, AKA
Vicente Cuevas Lopez,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the District of Arizona
Jennifer G. Zipps, District Judge, Presiding
Argued and Submitted March 6, 2019
Phoenix, Arizona
Filed August 19, 2019
Before: Richard R. Clifton, Sandra S. Ikuta,
and Michelle T. Friedland, Circuit Judges.
Opinion by Judge Friedland;
Dissent by Judge Ikuta
2 UNITED STATES V. CUEVAS-LOPEZ
SUMMARY *
Criminal Law
Affirming a sentence for attempted illegal reentry after
deportation in violation of 8 U.S.C. § 1326, the panel held
that the “single sentence rule” in U.S.S.G. § 4A1.2(a)(2)
applies to the enhancements in U.S.S.G. § 2L1.2(b)(2) and
(b)(3).
The single sentence rule instructs that whether to treat
multiple prior sentences as a single sentence depends on
whether they were separated by an intervening arrest,
charged in the same instrument, or imposed on the same day;
and provides that if prior sentences are treated as a single
sentence, a court should use the longest sentence of
imprisonment if concurrent sentences were imposed and use
the aggregate sentence of imprisonment if consecutive
sentences were imposed. A state court had previously
sentenced the defendant to two consecutive 3.5-year terms
imposed on the same day for two second-degree burglary
convictions.
Because the single sentence rule applies to § 2L1.2, the
panel concluded that the district court properly relied on the
rule to aggregate the defendant’s two consecutive 3.5-year
sentences in applying a ten-level enhancement pursuant to
U.S.S.G. § 2L1.2(b)(3)(A), which applies to a defendant
charged under § 1326 who was previously ordered deported
or removed and who subsequently committed a felony
*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
UNITED STATES V. CUEVAS-LOPEZ 3
offense for which the sentence imposed was five years or
more.
Dissenting, Judge Ikuta wrote that under the plain
language of the Sentencing Guidelines, the defendant does
not have “a conviction for a felony offense . . . for which the
sentence imposed was five years or more,” U.S.S.G.
§ 2L1.2; and that the applicable Guidelines range should not
be increased based solely on inferences regarding the
Sentencing Commission’s unspoken intent.
COUNSEL
Jeffrey G. Buchella (argued), Tucson, Arizona, for
Defendant-Appellant.
Corey J. Mantei (argued), Assistant United States Attorney;
Elizabeth A. Strange, First Assistant United States Attorney;
Robert L. Miskell, Appellate Chief; United States Attorney’s
Office, Tucson, Arizona; for Plaintiff-Appellee.
OPINION
FRIEDLAND, Circuit Judge:
Defendant-Appellant Vicente Cuevas-Lopez pleaded
guilty to attempted illegal reentry after deportation in
violation of 8 U.S.C. § 1326. In determining Cuevas-
Lopez’s sentence, the district court applied a ten-level
enhancement to his base offense level pursuant to United
States Sentencing Guidelines Manual (“U.S.S.G.” or
“Guidelines Manual”) § 2L1.2(b)(3)(A) (“the
Enhancement”), as had been recommended by the Pre-
4 UNITED STATES V. CUEVAS-LOPEZ
Sentence Report. 1 The Enhancement applies to a defendant
charged under 8 U.S.C. § 1326 who was previously ordered
deported or removed and who subsequently committed “a
felony offense . . . for which the sentence imposed was five
years or more.” U.S.S.G. § 2L1.2(b)(3)(A).
A state court had previously sentenced Cuevas-Lopez to
two consecutive 3.5-year terms imposed on the same day for
two second-degree burglary convictions. The district court
aggregated Cuevas-Lopez’s two 3.5-year sentences to
produce a seven-year sentence for purposes of applying the
Enhancement, relying on § 4A1.2(a)(2) of the Guidelines
Manual, which is known as the “single sentence rule.”
Cuevas-Lopez, who did not object at sentencing, now argues
that the district court erred in adhering to the single sentence
rule and thus in aggregating the two sentences when
considering what level of enhancement to apply. We affirm,
joining the Fifth Circuit in holding that the single sentence
rule in § 4A1.2(a)(2) governs the determination whether an
enhancement applies under § 2L1.2(b).
I.
A.
The Sentencing Reform Act of 1984 established “factors
to guide [federal] district courts in exercising their traditional
1
We review Cuevas-Lopez’s sentence based on the 2016 Guidelines
Manual, which was in effect at the time of Cuevas-Lopez’s sentencing.
U.S.S.G. § 1B1.11 (2018) (“The court shall use the Guidelines Manual
in effect on the date that the defendant is sentenced,” unless doing so
“would violate the ex post facto clause of the United States
Constitution.”); see also United States v. Thomsen, 830 F.3d 1049, 1071
(9th Cir. 2016). All section references, and all citations to the Guidelines
Manual, are to the 2016 version unless otherwise specified.
UNITED STATES V. CUEVAS-LOPEZ 5
sentencing discretion.” Beckles v. United States, 137 S. Ct.
886, 893 (2017). Congress simultaneously “created the
United States Sentencing Commission and charged it with
establishing guidelines to be used for sentencing.” Id.
Although “[t]he Guidelines were initially binding on district
courts,” the Supreme Court in United States v. Booker,
543 U.S. 220 (2005), “rendered them ‘effectively
advisory.’” Beckles, 137 S. Ct. at 894 (quoting Booker,
543 U.S. at 245). The Guidelines Manual is nonetheless
‘“the starting point and the initial benchmark’ for
sentencing.” Id. (quoting Gall v. United States, 552 U.S. 38,
49 (2007)).
The Guidelines Manual provides sentencing ranges
determined by a combination of “the seriousness of a
defendant’s offense . . . and his [or her] criminal history.”
Molina-Martinez v. United States, 136 S. Ct. 1338, 1342
(2016). The offense seriousness is reflected in an “offense
level” comprised of a base offense level, which is assigned
by the Guidelines Manual to each type of conviction;
specific offense characteristics, which can increase or
decrease the offense level for each offense; and upward and
downward adjustments, which can be applied to any offense.
See U.S.S.G. § 1B1.1(a)(1)–(5). A defendant is assigned
criminal history points based on his or her past criminal
conduct, which then places the defendant in a criminal
history category between I and VI. See U.S.S.G. § 4A1.1;
U.S.S.G. ch. 5, pt. A, Sentencing Table. The Guidelines
Manual combines this criminal history category with a
defendant’s calculated offense level to produce a
recommended sentencing range. U.S.S.G. ch. 5, pt. A,
Sentencing Table.
6 UNITED STATES V. CUEVAS-LOPEZ
B.
Cuevas-Lopez, who is a citizen of Mexico, was ordered
deported from the United States in 2004, and was deported
several times between 2004 and 2015. He unsuccessfully
attempted to reenter the country in 2017. He was then
charged with attempted illegal reentry after deportation, in
violation of 8 U.S.C. § 1326(a), as enhanced by 8 U.S.C.
§ 1326(b)(1). Cuevas-Lopez pled guilty to the charge, and
the district court held a sentencing hearing in October 2017.
In advance of the hearing, the U.S. Probation Office
prepared a Pre-Sentence Report (“PSR”). Applying
§ 2L1.2(a), the relevant offense guideline for illegal reentry
offenses, the PSR recommended a base offense level of eight
for a violation of 8 U.S.C. § 1326. With regard to specific
offense characteristics, the PSR added a ten-level
enhancement pursuant to § 2L1.2(b)(3)(A) based on the fact
that “[a]fter [Cuevas-Lopez] was first ordered deported or
removed from the United States, he sustained a felony
conviction for which the sentences imposed in a two-count
indictment were ordered to run consecutive,” and which
“resulted in a cumulative sentence that was five years or
more.” 2
The ten-level enhancement arose out of Cuevas-Lopez’s
November 3, 2007 arrest for two felony burglaries. The first
burglary was reported on November 1, 2007, and the second
was committed on November 3, 2007. Cuevas-Lopez was
2
Although the PSR referred to Cuevas-Lopez as having “sustained
a felony conviction” after first being deported, the relevant question
under § 2L1.2(b)(3) is whether a defendant “engaged in criminal
conduct” after deportation that later resulted in a felony conviction. This
difference is immaterial here because Cuevas-Lopez’s relevant conduct
and resulting convictions all occurred after he was first ordered deported.
UNITED STATES V. CUEVAS-LOPEZ 7
convicted of both burglaries, and on March 10, 2008 an
Arizona state court sentenced him to 3.5 years in prison for
each offense, ordered to run consecutively.
The PSR applied the single sentence rule to treat Cuevas-
Lopez’s two consecutive 3.5-year sentences as a single
seven-year sentence. This aggregated seven-year sentence
triggered the ten-level enhancement under § 2L1.2(b)(3)(A)
(again, the “Enhancement”), so the PSR assigned Cuevas-
Lopez an adjusted offense level of 18 for the instant illegal
reentry offense. It then applied a three-level downward
adjustment for acceptance of responsibility, resulting in an
offense level of 15. The PSR placed Cuevas-Lopez in
criminal history category V based on the two burglaries
discussed above and other convictions between 2006 and
2008. Cuevas-Lopez’s criminal history category and offense
level resulted in a Guidelines range of 37 to 46 months in
prison. Without aggregating Cuevas-Lopez’s two burglary
sentences, § 2L1.2(b)(3)(B) would have called for an eight-
level enhancement based on a 3.5-year sentence, which
would have resulted in an offense level of 13 after the
downward adjustment and a Guidelines range of 30 to
37 months. See U.S.S.G. ch. 5, pt. A, Sentencing Table.
At the sentencing hearing, the Government agreed with
the PSR’s recommendation and argued, based on the
§ 2L1.2(b)(3)(A) Enhancement, that Cuevas-Lopez’s base
offense level of eight was “properly enhanced by ten levels
because the defendant received a seven-year consecutive
state sentence . . . for two second-degree burglary counts
charged in a single indictment.” The district court adopted
the Guidelines calculation in the PSR, to which Cuevas-
Lopez did not object. The court sentenced Cuevas-Lopez to
37 months in prison and three years of supervised release.
8 UNITED STATES V. CUEVAS-LOPEZ
Cuevas-Lopez timely appealed and now argues that the
single sentence rule does not apply to § 2L1.2(b)(3)
enhancements, and that the district court therefore should not
have aggregated his two prior 3.5-year sentences for
purposes of determining his Guidelines range.
II.
A.
Where, as here, a defendant makes an argument on
appeal that was not the basis for an objection in the district
court, we generally review for plain error. See United States
v. Gomez, 725 F.3d 1121, 1125 (9th Cir. 2013) (“If the
defendant fails to object, we review for plain error.”); see
also Fed. R. Crim P. 52(b) (“A plain error that affects
substantial rights may be considered even though it was not
brought to the court’s attention.”). We have held, however,
that “we are not limited to [plain error] review when we are
presented with a question that ‘is purely one of law’ and
where ‘the opposing party will suffer no prejudice as a result
of the failure to raise the issue in the trial court.’” United
States v. Saavedra-Velazquez, 578 F.3d 1103, 1106 (9th Cir.
2009) (quoting United States v. Echavarria-Escobar,
270 F.3d 1265, 1267–68 (9th Cir. 2001)).
Cuevas-Lopez urges us to apply de novo review, despite
his failure to object in the district court, because his
argument about when the single sentence rule applies
presents a pure question of law. The Government responds
that our court’s “pure question of law” exception to plain
error review is inconsistent with the Supreme Court’s
interpretation of Federal Rule of Criminal Procedure 52(b).
In support, the Government cites Puckett v. United States,
556 U.S. 129 (2009), in which the Supreme Court held that
“[f]ailure to abide by [the] contemporaneous-objection rule
UNITED STATES V. CUEVAS-LOPEZ 9
ordinarily precludes the raising on appeal of [an]
unpreserved claim of trial error,” with a “limited exception,”
id. at 135, for a “plain error that affects substantial rights,”
id. (quoting Fed. R. Crim. P. 52(b)). The Government also
relies on Judge Graber’s concurrence in United States v.
Zhou, 838 F.3d 1007 (9th Cir. 2016), which opined that
“[o]ur ‘pure question of law’ exception contradicts Rule
52(b) and the Supreme Court’s case law.” Id. at 1016
(Graber, J., concurring). We need not resolve this dispute or
otherwise decide which standard of review applies here,
because we would affirm under either de novo or plain error
review. For the reasons explained below, we conclude that
the district court correctly interpreted the Guidelines Manual
in determining that the single sentence rule applies to
§ 2L1.2(b) enhancements.
B.
1.
Although the Guidelines are advisory only, a “district
court must correctly calculate the recommended Guidelines
sentence and use that recommendation as the ‘starting point
and the initial benchmark.’” United States v. Munoz-
Camarena, 631 F.3d 1028, 1030 (9th Cir. 2011) (quoting
Kimbrough v. United States, 552 U.S. 85, 108 (2007)). The
court must keep the Guidelines range “in mind throughout
the process,” id. (quoting United States v. Carty, 520 F.3d
984, 991 (9th Cir. 2008) (en banc)), and “justify the extent
of [any] departure from the Guidelines,” id. “Failure to
calculate the correct Guidelines range constitutes procedural
error.” Peugh v. United States, 569 U.S. 530, 537 (2013).
As the Supreme Court has explained, the Guidelines
Manual “contains text of three varieties,” each of which is
written by the Sentencing Commission. Stinson v. United
10 UNITED STATES V. CUEVAS-LOPEZ
States, 508 U.S. 36, 41 (1993). The “[f]irst is a guideline
provision itself,” which “provide[s] direction as to the
appropriate type [and extent] of punishment.” Id. A “second
variety of text in the [Guidelines] Manual is a policy
statement . . . regarding application of the guidelines or other
aspects of sentencing that would further the purposes of the
[Sentencing Reform] Act.” Id. (quotation marks omitted).
The third type of text in the Guidelines Manual is
commentary, which accompanies both guidelines and policy
statements. Id. Commentary may serve three functions: to
“interpret a guideline or explain how it is to be applied”; to
“suggest circumstances which may warrant departure from
the guidelines”; and to “provide background information,
including factors considered in promulgating the guideline
or reasons underlying promulgation of the guideline.” Id.
(alterations and citation omitted). Any modifications or
amendments to the guidelines provisions themselves (the
first category of text) must be accompanied by a “statement
of the reasons therefor” authored by the Sentencing
Commission, and take effect on a date set by the
Commission, within certain statutory parameters and subject
to any changes made by Congress. See 28 U.S.C. § 994(p).
“We interpret the Sentencing Guidelines using the
ordinary tools of statutory interpretation.” United States v.
Martinez, 870 F.3d 1163, 1166 (9th Cir. 2017). Our
interpretation “will most often begin and end with the text
and structure of the [g]uidelines” provisions themselves. Id.
(quoting United States v. Joey, 845 F.3d 1291, 1297 n.8 (9th
Cir. 2017)). We also consider “the Commission’s
commentary interpreting or explaining the text” of those
guidelines provisions. Id. The commentary “is authoritative
unless it violates the Constitution or a federal statute, or is
inconsistent with, or a plainly erroneous reading of, that
guideline.” Stinson, 508 U.S. at 38; see also United States
UNITED STATES V. CUEVAS-LOPEZ 11
v. Prien-Pinto, 917 F.3d 1155, 1157–58 (9th Cir. 2019)
(following Stinson). Policy statements, likewise, are binding
“[t]o the extent that they interpret substantive guidelines and
do not conflict with them or any statutory directives.”
United States v. Chea, 231 F.3d 531, 536 n.1 (9th Cir. 2000)
(citation omitted); see also Stinson, 508 U.S. at 42 (“The
principle that the Guidelines Manual is binding on federal
courts applies as well to policy statements.”). “We may also
look to [a] provision’s history and purpose, such as by
consulting the Commission’s statements of reason for a
particular amendment.” Martinez, 870 F.3d at 1166 (citation
and quotation marks omitted); see also United States v.
Ornelas, 825 F.3d 548, 554 (9th Cir. 2016) (noting that we
“look to the Commission’s statements of reason for
guidance” in interpreting individual guidelines).
2.
Chapter Two of the Guidelines Manual governs offense
conduct. The offense guideline within Chapter Two
applicable to a conviction for attempted illegal reentry is
§ 2L1.2. 3 Section 2L1.2(a) provides a base offense level of
eight. Sections 2L1.2(b)(1), (b)(2), and (b)(3), which
contain the specific offense characteristics, apply
enhancements of between two and ten levels based on a
defendant’s prior convictions. Some of these enhancements
depend on the types of convictions sustained and others
3
The guideline applicable to a substantive offense generally also
applies to inchoate offenses such as attempt. See U.S.S.G. § 2X1.1
(2018). The parties do not dispute that § 2L1.2, which is titled
“Unlawfully Entering or Remaining in the United States,” applies to
Cuevas-Lopez’s attempted illegal reentry. See United States v. Rosales-
Aguilar, 818 F.3d 965, 972 (9th Cir. 2016) (applying § 2L1.2 to an
attempted illegal reentry case).
12 UNITED STATES V. CUEVAS-LOPEZ
depend on the length of sentences received. In
§ 2L1.2(b)(1), § 2L1.2(b)(2)(E), and § 2L1.2(b)(3)(E), the
size of the enhancement turns on the type of offense. 4 The
other subsections in § 2L1.2(b)(2) and § 2L1.2(b)(3),
including the Enhancement, add varying levels of
enhancement based on the length of a defendant’s sentence
imposed for prior convictions.
Subsection (b)(3), which the district court applied to
enhance Cuevas-Lopez’s base offense level in this case,
provides in full:
(3) (Apply the Greatest) If, at any time after
the defendant was ordered deported or
ordered removed from the United States for
the first time, the defendant engaged in
criminal conduct resulting in—
(A) a conviction for a felony offense (other
than an illegal reentry offense) for which
the sentence imposed was five years or
more, increase by 10 levels;
(B) a conviction for a felony offense (other
than an illegal reentry offense) for which
4
In § 2L1.2(b)(1), the level of enhancement depends on whether the
defendant, before committing the offense for which he is being
sentenced, sustained “a conviction for a felony that is an illegal reentry
offense” or sustained “two or more convictions for [improper entry]
misdemeanors under 8 U.S.C. § 1325(a).” U.S.S.G. § 2L1.2(b)(1). Both
(b)(2)(E) and (b)(3)(E) apply a two-level enhancement where a
defendant has “three or more convictions for misdemeanors that are
crimes of violence or drug trafficking offenses.”
U.S.S.G. § 2L1.2(b)(2)(E), (b)(3)(E).
UNITED STATES V. CUEVAS-LOPEZ 13
the sentence imposed was two years or
more, increase by 8 levels;
(C) a conviction for a felony offense (other
than an illegal reentry offense) for which
the sentence imposed exceeded one year
and one month, increase by 6 levels;
(D) a conviction for any other felony offense
(other than an illegal reentry offense),
increase by 4 levels; or
(E) three or more convictions for
misdemeanors that are crimes of violence
or drug trafficking offenses, increase by
2 levels.
U.S.S.G. § 2L1.2(b)(3) (underlining added). Subsection
2L1.2(b)(2) mirrors subsection (b)(3), but relates to a
defendant’s convictions, if any, sustained before being
ordered deported or removed. See § 2L1.2(b)(2). 5
5
Although we apply the 2016 Guidelines Manual here, we note that
§ 2L1.2 was amended in 2018 to “establish[] that the application of the
§ 2L1.2(b)(2) enhancement depends on the timing of the underlying
‘criminal conduct,’ and not on the timing of the resulting conviction.”
U.S.S.G. Supp. to app. C, amend. 809 at 188 (Nov. 1, 2018). The
amended § 2L1.2(b)(2) applies when “before the defendant was ordered
deported or ordered removed . . . for the first time, the defendant engaged
in criminal conduct that, at any time, resulted in” the various convictions
and sentences enumerated in that section. U.S.S.G. § 2L1.2(b)(2)
(2018). The Sentencing Commission simultaneously updated subsection
(b)(3) to mirror the language in subsection (b)(2), see § 2L1.2(b)(3)
(2018), though subsection (b)(3), unlike (b)(2), had already (before the
2018 amendment) depended upon the timing of the underlying conduct,
rather than the underlying conviction, see § 2L1.2(b)(3) (2016).
14 UNITED STATES V. CUEVAS-LOPEZ
Cuevas-Lopez contends that the words “a conviction” in
the Enhancement (underlined above) preclude a district
court from aggregating consecutive sentences for purposes
of applying the Enhancement. Although this contention
finds some support in the language of § 2L1.2(b)(3), we are
persuaded in light of the application notes in the commentary
to § 2L1.2, as well as the Sentencing Commission’s
statement of reasons for the 2016 amendment to § 2L1.2,
that the district court properly aggregated Cuevas-Lopez’s
two 3.5-year sentences here.
In aggregating Cuevas-Lopez’s two sentences, the
district court relied on the single sentence rule. The single
sentence rule falls within Chapter Four of the Guidelines
Manual, which contains guidelines for categorizing a
defendant’s criminal history. Section 4A1.2(a) of Chapter
Four defines “prior sentence” as “any sentence previously
imposed upon adjudication of guilt, whether by guilty plea,
trial, or plea of nolo contendere, for conduct not part of the
instant offense.” U.S.S.G. § 4A1.2(a)(1). The guideline
then instructs that whether to treat multiple prior sentences
as a single sentence depends on whether they were separated
by an intervening arrest, charged in the same instrument, or
imposed on the same day. Specifically, § 4A1.2(a)(2) states:
If the defendant has multiple prior sentences,
determine whether those sentences are
counted separately or treated as a single
sentence. Prior sentences always are counted
separately if the sentences were imposed for
offenses that were separated by an
intervening arrest (i.e., the defendant is
arrested for the first offense prior to
committing the second offense). If there is
no intervening arrest, prior sentences are
UNITED STATES V. CUEVAS-LOPEZ 15
counted separately unless (A) the sentences
resulted from offenses contained in the same
charging instrument; or (B) the sentences
were imposed on the same day. Treat any
prior sentence covered by (A) or (B) as a
single sentence. See also § 4A1.1(e).
U.S.S.G. § 4A1.2(a)(2).
Section 4A1.2(a)(2) goes on to provide that “if prior
sentences are treated as a single sentence,” a court should
“use the longest sentence of imprisonment if concurrent
sentences were imposed” and “use the aggregate sentence of
imprisonment” where “consecutive sentences were
imposed.” U.S.S.G. § 4A1.2(a)(2). Here, the district court
applied a ten-level enhancement based on Cuevas-Lopez’s
consecutive 3.5-year sentences, rather than an eight-level
enhancement, which would have applied had Cuevas-
Lopez’s two 3.5-year sentences been ordered to run
concurrently (or if they had been ordered to run
consecutively but the single sentence rule’s aggregation
provisions did not apply). Our task, therefore, is to
determine whether Chapter Four’s single sentence rule
properly applies to § 2L1.2.
In support of his argument that the single sentence rule’s
aggregation provisions should not apply here, Cuevas-Lopez
relies on § 2L1.2’s commentary—specifically Application
Note 2. Application Note 2 to § 2L1.2 gives “sentence
imposed” “the meaning given the term ‘sentence of
imprisonment’ in Application Note 2 and subsection (b) of
§ 4A1.2.” U.S.S.G. § 2L1.2 cmt. n.2. As Cuevas-Lopez
points out, this application note to § 2L1.2 does not reference
subsection (a) of § 4A1.2, which defines “prior sentence”
and contains the single sentence rule. Cuevas-Lopez argues
16 UNITED STATES V. CUEVAS-LOPEZ
that because Application Note 2 specifically cross-
references a part of § 4A1.2 and yet does not reference the
part containing the single sentence rule, the Commission
meant to exclude the single sentence rule from applying to
the § 2L1.2(b) enhancements.
In our view, the absence of a mention of subsection (a)
of § 4A1.2 in Application Note 2 to § 2L1.2 does not hold
the significance Cuevas-Lopez wishes. 6 Rather, we read
§ 4A1.2(b) and Application Note 2 to that section—the two
Guidelines Manual components specifically referenced in
§ 2L1.2’s commentary for purposes of defining “sentence
imposed”—as simply being silent on the question whether
separate sentences that are imposed on the same day and
ordered to run consecutively should be aggregated for
purposes of applying the Enhancement. Other application
notes to the offense guideline in which the Enhancement
appears, however, speak more to the issue and evince the
Sentencing Commission’s intent that the single sentence rule
apply to § 2L1.2(b).
One example is Application Note 3 to the § 2L1.2
offense guideline. Note 3 instructs a court that when
“applying subsections (b)(1), (b)(2), and (b)(3)” of
§ 2L1.2—i.e., the § 2L1.2(b) enhancements—a court should
6
The Guidelines Manual does state, as Cuevas-Lopez argues, that
“[a]n instruction to use a particular subsection or table from another
offense guideline refers only to the particular subsection or table
referenced, and not to the entire offense guideline.” U.S.S.G.
§ 1B1.5(b)(2). Section 4A1.2 is not, however, an offense guideline—
rather, it provides “Definitions and Instructions for Computing Criminal
History.” And, in any event, even if the reference to subsection (b) does
not itself amount to an instruction to apply subsection (a), it still leaves
us with silence on whether or not to apply subsection (a)’s single
sentence rule.
UNITED STATES V. CUEVAS-LOPEZ 17
“use only those convictions that receive criminal history
points under § 4A1.1(a), (b), or (c).” U.S.S.G. § 2L1.2 cmt.
n.3. Criminal history points are added under § 4A1.1(a) and
§ 4A1.1(b) based on “prior sentence[s] of imprisonment” of
over 13 months (for which three points are added) and
between 60 days and 13 months (for which two points are
added), respectively. Under § 4A1.1(c), one additional point
is added for “each prior sentence” not counted in either (a)
or (b). Subsection (e) to § 4A1.1—which is not referenced
in § 2L1.2’s Application Note 3—instructs courts to “[a]dd
1 point for each prior sentence resulting from a conviction of
a crime of violence that did not receive any points under (a),
(b), or (c) . . . because such sentence was treated as a single
sentence.” U.S.S.G. § 4A1.1(e) (emphasis added). The
upshot is that certain “prior sentence[s] of imprisonment” in
§ 4A1.1(a)–(c) will actually sometimes consist of
aggregated sentences from multiple separate convictions
pursuant to the single sentence rule. Because Application
Note 3 to § 2L1.2 instructs courts, for purposes of applying
the § 2L1.2(b) enhancements, to use only convictions that
receive criminal history points under subsections (a)–(c) of
§ 4A1.1, it suggests that whether and how a conviction
should be counted for purposes of a § 2L1.2(b) enhancement
depends on the operation of the single sentence rule.
This understanding is reinforced by a second directive in
Application Note 3 to § 2L1.2—that “for purposes of
subsections (b)(1)(B), (b)(2)(E), and (b)(3)(E)” 7 of that
section, courts “use only those convictions that are counted
separately under [the single sentence rule in] § 4A1.2(a)(2).”
U.S.S.G. § 2L1.2 cmt. n.3. This directive further suggests
7
These subsections retained a categorical approach after the 2016
amendment to § 2L1.2, discussed below, and deal with prior
misdemeanor convictions. See infra n.9.
18 UNITED STATES V. CUEVAS-LOPEZ
that the Sentencing Commission anticipated that in some
instances two or more convictions could be counted—and
referred to—as one under the single sentence rule, and that a
court should do so for purposes of other subsections of
§ 2L1.2. Were this not the baseline assumption, there would
be no need to explicitly make the single sentence rule
inapplicable to these subsections. Application Note 3
therefore weighs in favor of applying the single sentence rule
to determine which § 2L1.2(b)(3) enhancement applies.
Application Note 4 to § 2L1.2, which deals with cases in
which a sentence for an illegal reentry offense was imposed
at the same time as one for another felony offense, lends
some additional support for applying the single sentence
rule. It provides:
There may be cases in which the sentences
for an illegal reentry offense and another
felony offense were imposed at the same time
and treated as a single sentence for purposes
of calculating the criminal history score
under § 4A1.1(a), (b), and (c). In such a case,
use the illegal reentry offense in determining
the appropriate enhancement under
subsection (b)(1), if it independently would
have received criminal history points. In
addition, use the prior sentence for the other
felony offense in determining the appropriate
enhancement under subsection (b)(3), if it
independently would have received criminal
history points.
U.S.S.G. § 2L1.2 cmt. n.4 (emphasis added). Like Note 3,
this application note appears to assume that § 4A1.2(a)’s
UNITED STATES V. CUEVAS-LOPEZ 19
single sentence rule would normally apply to § 2L1.2(b)
enhancements.
3.
The Sentencing Commission’s statement of reasons for
the amendment to § 2L1.2 that created the version applicable
here also supports the district court’s application of the
single sentence rule. See Ornelas, 825 F.3d at 554 (looking
“to the Commission’s statements of reason for guidance” in
interpreting a guideline). Before that 2016 amendment,
§ 2L1.2(b) enhancements were based on “the nature of a
defendant’s most serious conviction,” as determined by the
“categorical approach to the penal statute underlying the
prior conviction.” U.S.S.G. Supp. to app. C, amend. 802
at155 (Nov. 1, 2016) (“Amendment 802”). Under the
categorical approach, courts “compare the elements of the
statute forming the basis of the defendant’s conviction with
the elements of the ‘generic’ crime—i.e., the offense as
commonly understood.” Descamps v. United States,
570 U.S. 254, 257 (2013). 8 Due to a concern that this
method of determining a level of enhancement was “overly
complex,” the Sentencing Commission adopted a simpler,
sentence-based model whereby, with a few exceptions, 9
8
We note, however, that even before 2016, the § 2L1.2(b)(1)(A) and
(B) enhancements required a court to use both a categorical approach
and a sentence-imposed approach, as subsection (A) applied where a
defendant sustained “a conviction for a felony offense that [was] . . . a
drug trafficking offense for which the sentence imposed exceeded 13
months,” and subsection (B) applied where a defendant sustained a
felony drug trafficking conviction “for which the sentence imposed was
13 months or less.” U.S.S.G. § 2L1.2(b)(1) (2015).
9
The guideline retained the categorical approach for
§ 2L1.2(b)(1)(B), (b)(2)(E), and (b)(3)(E), relating to predicate
20 UNITED STATES V. CUEVAS-LOPEZ
“[t]he level of the sentencing enhancement for a prior
conviction generally [would] be determined by the length of
the sentence imposed for the prior offense.” 10 Amendment
802 at 155.
In a section of the statement of reasons titled
“Accounting for Other Prior Convictions,” the Sentencing
Commission analogized the sentence-imposed approach in
subsections (b)(2) and (b)(3) “to how Chapter Four of the
Guidelines Manual determines a defendant’s criminal
history score based on his or her prior convictions”—notably
referencing Chapter Four (in which the single sentence rule
appears) in its entirety. Amendment 802 at 156. “The
[Sentencing] Commission concluded that the length of
sentence imposed by a sentencing court is a strong indicator
of the court’s assessment of the seriousness of the predicate
offense at the time, . . . consistent with how criminal history
is generally scored in . . . Chapter Four of the Guidelines
Manual.” Amendment 802 at 157. The Commission also
wrote, in a section titled “Illegal Reentry”: “The definition
of ‘sentence imposed’ [in the amended § 2L1.2] is the same
definition that appears in Chapter Four of the Guidelines
Manual.” 11 Amendment 802 at 155. The Sentencing
misdemeanor convictions, as well as § 2L1.2(b)(1)(A), relating to
predicate illegal reentry felonies.
10
Additionally, before 2016, § 2L1.2(b) included only an
enhancement for convictions that occurred before deportation. See
U.S.S.G. § 2L1.2 (2015). Amendment 802 sought to address a concern
that, because of this, § 2L1.2 did not sufficiently account for all types of
criminal conduct committed by persons charged with illegal reentry.
Amendment 802 at 155–56.
11
We note that although Chapter Four uses the term “sentence
imposed,” it does not specifically define it.
UNITED STATES V. CUEVAS-LOPEZ 21
Commission did not limit this explanation to any particular
provision of Chapter Four, thereby seeming to incorporate
Chapter Four’s single sentence rule.
Similarly, the Commission wrote, in a section of the
statement of reasons titled “Excluding Stale Convictions,”
that in the context of § 2L1.2’s specific offense
characteristics, “it is . . . appropriate to employ the criminal
history rules.” Amendment 802 at 159. Because the single
sentence rule is contained in the part of Chapter Four that
prescribes the criminal history rules, this statement also
suggests that the Commission envisioned that the rule would
apply to the § 2L1.2(b) enhancements.
Perhaps the strongest evidence of the Commission’s
intent appears in another passage of the statement of reasons
under the heading “Application of the ‘Single Sentence
Rule,’” which discusses the 2016 addition of what became
Application Note 4 to § 2L1.2. See Amendment 802 at 159.
As we have mentioned, Application Note 4 deals with cases
in which a defendant is sentenced for an illegal reentry
offense at the same time as another federal felony offense.
In such cases, “the illegal reentry offense counts towards
subsection (b)(1), while the other felony offense counts
towards subsection (b)(3).” Amendment 802 at 159. The
Commission explained in the statement of reasons that it
intended “to make a distinction between illegal reentry
offenses and other types of offenses,” and “concluded that it
was appropriate to ensure that such convictions are
separately accounted for under the applicable specific
offense characteristics, even if they might otherwise
constitute a ‘single sentence’ under § 4A1.2(a)(2).”
Amendment 802 at 159. Thus, both the text of Application
Note 4 and the Commission’s stated reason for adding it are
22 UNITED STATES V. CUEVAS-LOPEZ
based on an assumption that the single sentence rule would
apply to § 2L1.2.
Applying the single sentence rule to § 2L1.2 also makes
sense in light of the Sentencing Commission’s purpose in
drafting Amendment 802. The amended enhancements’
“sentence imposed” approach replaced the earlier
categorical method and was intended to capture—in a
simpler way—the seriousness of a defendant’s prior offense.
The single sentence rule requires aggregation only when
sentences are ordered to run consecutively. The imposition
of consecutive, rather than concurrent, sentences generally
reflects a decision by either a sentencing judge or, in some
cases when sentences are statutorily required to run
consecutively, by a legislature, that a consecutive term of
imprisonment would better reflect the seriousness of a
defendant’s conduct as well as the need for deterrence,
education or treatment of the defendant, and protection of
the public. See 18 U.S.C. § 3584 (stating that “[m]ultiple
terms of imprisonment imposed at the same time run
concurrently unless the court orders or the statute mandates
that the terms are to run consecutively,” and directing judges
to consider the sentencing factors set forth in 18 U.S.C.
§ 3553 “in determining whether the terms imposed are to be
ordered to run concurrently or consecutively”); 18 U.S.C.
§ 3553 (sentencing factors); Setser v. United States, 566 U.S.
231, 236 (2012) (“Judges have long been understood to have
discretion to select whether the sentences they impose will
run concurrently or consecutively with respect to other
sentences that they impose.”). Applying the single sentence
rule to the § 2L1.2(b)(2) and (b)(3) enhancements therefore
captures the seriousness of a defendant’s prior convictions
and achieves the same goal that the previous categorical
approach sought to achieve.
UNITED STATES V. CUEVAS-LOPEZ 23
4.
Even if there were some ambiguity in how broadly the
Sentencing Commission intended the single sentence rule to
apply, as the dissent’s arguments for a contrary
interpretation suggest there may be, the goal of avoiding a
circuit split would lead us to hold that the single sentence
rule applies here. “[A]bsent a strong reason to do so, we will
not create a direct conflict with other circuits.” United States
v. Chavez-Vernaza, 844 F.2d 1368, 1374 (9th Cir. 1987); see
also Global Linguist Sols., LLC v. Abdelmeged, 913 F.3d
921, 923 (9th Cir. 2019) (“[W]e so hold to avoid an
unnecessary circuit split.”). The Fifth Circuit recently
became the first circuit court to answer whether, under the
2016 Guidelines Manual, the single sentence rule applies to
§ 2L1.2(b). In United States v. Garcia-Sanchez, that court
held that it does. 916 F.3d 522, 526 (5th Cir. 2019). 12 The
Garcia-Sanchez decision therefore weighs heavily in favor
of affirming the district court’s interpretation here.
The Fifth Circuit found support for its conclusion in two
components of Amendment 802 discussed above. It first
looked to the section on “Accounting for Other Prior
Convictions” in the Sentencing Commission’s statement of
reasons for Amendment 802, which described the length of
a sentence imposed as “a strong indicator of the court’s
assessment of the seriousness of the predicate offense,” and
as “consistent with the Chapter Four criminal history rules.”
Garcia-Sanchez, 916 F.3d at 527 (quoting Amendment 802
at 157–58). The Fifth Circuit further relied on the section
12
Prior to Garcia-Sanchez, the Fifth Circuit had held in United
States v. Ponce-Flores, 900 F.3d 215 (5th Cir. 2018), that because any
error could not have been obvious, a district court did not plainly err in
applying the single sentence rule to a § 2L1.2 enhancement. Id. at 219.
24 UNITED STATES V. CUEVAS-LOPEZ
titled “Excluding Stale Convictions,” which explains that, in
the context of § 2L1.2(b)’s specific offense characteristics,
“it is . . . appropriate to employ the criminal history rules,”
which contain the single sentence rule. Id. (quoting
Amendment 802 at 159).
The court in Garcia-Sanchez also found persuasive the
Fourth Circuit’s reasoning in United States v. Martinez-
Varela, 531 F.3d 298 (4th Cir. 2008). In that case, the
district court aggregated sentences for purposes of applying
a pre-2016 version of § 2L1.2(b)(1), which called for an
enhancement if a defendant was “previously convicted of a
drug trafficking offense for which the ‘sentence imposed’
was greater than thirteen months.” Martinez-Varela,
531 F.3d at 299. That version of § 2L1.2, like the 2016
version, contained an application note that referenced
Application Note 2 and subsection (b) of § 4A1.2 for
purposes of defining “sentence imposed.” Id. at 300. The
Fourth Circuit affirmed, reasoning that although the
provisions cross-referenced in application notes to § 2L1.2
did not specifically address the issue of aggregating
sentences, commentary to § 4A1.1 instructed that “§§ 4A1.1
and 4A1.2 must be read together,” providing “strong
evidence that these two provisions should be read together
in determining [the defendant’s] criminal history points,”
and thus that the single sentence rule should apply to the
§ 2L1.2(b)(1) enhancement at issue. Id. at 301–02.
Although our court had no previous occasion to reach the
sentencing question presented here, the holding in Garcia-
Sanchez and the reasoning in Martinez-Varela are consistent
with our case law. We previously recognized that
“[s]ections 2L1.2(b) and 4A1.1-2 serve the same underlying
function” of “determin[ing] the extent to which prior
convictions affect a defendant’s sentence for the current
UNITED STATES V. CUEVAS-LOPEZ 25
offense,” and that it therefore “makes sense to treat prior
sentences in the same manner when they are used to
determine the offense level under section 2L1.2 as when
they are used to determine the criminal history category.”
United States v. Ortiz-Gutierrez, 36 F.3d 80, 82 (9th Cir.
1994); 13 see also United States v. Moreno-Cisneros,
319 F.3d 456, 458–59 (9th Cir. 2003) (noting that
“Guideline § 4A1.2 is analogous to § 2L1.2(b)(1),” and that
§ 4A1.2 is “broadly applicable”); United States v. Frias,
338 F.3d 206, 210 (3d Cir. 2003) (describing Chapter 4 and
an earlier version of § 2L1.2 as “clearly aimed at the same
thing, which is varying the punishment based on the criminal
record,” and concluding that it therefore made sense to refer
to Chapter Four’s definitions in applying § 2L1.2 (quotation
marks omitted)); United States v. Galicia-Delgado, 130 F.3d
518, 521 (2d Cir. 1997) (“[T]he definitions found in § 4A1.2
have often been borrowed to interpret terms in § 2L1.2.”).
We thus now join the Fifth Circuit in holding that the
single sentence rule applies to the enhancements in
§ 2L1.2(b)(2) and (b)(3). 14
13
In Ortiz-Gutierrez, we applied the single sentence rule to another
pre-2016 enhancement under § 2L1.2 that turned on whether a
defendant’s predicate offense was an aggravated felony, which at the
time “include[d] a crime of violence for which the defendant was
sentenced to at least five years imprisonment.” 36 F.3d at 82. Section
2L1.2 did not cross-reference either § 4A1.1 or § 4A1.2. Id.
14
We reject Cuevas-Lopez’s argument that we should apply the rule
of lenity to hold in his favor. “[T]he rule of lenity applies to the
Sentencing Guidelines,” but “only . . . where there is grievous ambiguity
or uncertainty in the guidelines.” United States v. D.M., 869 F.3d 1133,
1144 (9th Cir. 2017). We find no such “grievous ambiguity or
uncertainty” in the question of Guidelines Manual interpretation
presented here.
26 UNITED STATES V. CUEVAS-LOPEZ
III.
For the foregoing reasons, we reject Cuevas-Lopez’s
argument that the district court was wrong to apply the single
sentence rule in calculating his sentence. We therefore
AFFIRM.
IKUTA, Circuit Judge, dissenting:
Under the plain language of the Guidelines, the district
court should have calculated a Guidelines range of 30 to 37
months for Cuevas-Lopez. Instead, the district court applied
an unrelated section of the Guidelines to miscalculate a
Guidelines range of 37 to 46 months. Because the district
court sentenced Cuevas-Lopez to the bottom of the
Guidelines range, Cuevas-Lopez was effectively deprived of
the chance to get a 30-month sentence, instead of a 37-month
sentence. On de novo review, I would apply the Guidelines
as written, and therefore I dissent.
I
The factual background is simple. Vicente Cuevas-
Lopez, a citizen of Mexico, was deported from the United
States in 2004. In 2007, while in the United States illegally,
Cuevas-Lopez was convicted in Arizona state court of two
counts of second-degree burglary, one for burglarizing a
residence and the second for taking power tools from a
victim’s back yard. On March 10, 2008, he was sentenced
to three and a half years on each count.
In 2017, Cuevas-Lopez attempted to reenter the United
States illegally in Nogales, Arizona, but was stopped by
UNITED STATES V. CUEVAS-LOPEZ 27
Border Patrol agents. He later pleaded guilty to attempted
illegal reentry after deportation, 8 U.S.C. § 1326.
In calculating the Guidelines range, the district court
applied a ten-level sentencing enhancement. Such an
enhancement applies only to a defendant who engaged in
conduct that resulted in a conviction for a felony offense for
which the sentence imposed was five years of imprisonment
or more. U.S.S.G. § 2L1.2(b)(3)(A). 1 Although Cuevas-
Lopez had not been convicted of such an offense—the
longest sentence imposed on him was three and a half years
of imprisonment—the district court added his two sentences
for second-degree burglary together, and concluded the ten-
level enhancement was applicable. In light of this
enhancement, the court calculated a Guidelines range of 37
to 46 months in prison. Under the correct calculation, the
Guidelines range would have been 30 to 37 months in prison.
See id. § 2L1.2(b)(3)(B). Because the court imposed a
sentence at the bottom of the range, there is a chance that
Cuevas-Lopez would have been sentenced differently had
the district court made the correct calculation. See United
States v. Munoz-Camarena, 631 F.3d 1028, 1031 (9th Cir.
2011) (holding that an error in calculating the Guidelines
range was not harmless because “had the district court
started with the correct Guidelines range of 24 to 30 months,
rather than 33 to 41 months, it may have arrived at a different
sentence”).
Today, the majority affirms the district court’s
calculations under de novo review. But a straightforward
1
Because Cuevas-Lopez was sentenced in 2016, all references to
the Guidelines refer to the 2016 version of the Guidelines, unless
otherwise stated. See U.S.S.G. § 1B1.11.
28 UNITED STATES V. CUEVAS-LOPEZ
reading of the text of the Guidelines shows that the majority
is wrong.
II
A district court must “begin all sentencing proceedings
by correctly calculating the applicable Guidelines range.”
Gall v. United States, 552 U.S. 38, 49 (2007). Failure to
correctly calculate “the recommended Guidelines sentencing
range is a significant procedural error that requires us to
remand for resentencing.” Munoz-Camarena, 631 F.3d at
1030.
“We interpret the Sentencing Guidelines using the
ordinary tools of statutory interpretation.” United States v.
Martinez, 870 F.3d 1163, 1166 (9th Cir. 2017).
“[C]ommentary in the Guidelines Manual that interprets or
explains a guideline is authoritative unless it violates the
Constitution or a federal statute, or is inconsistent with, or a
plainly erroneous reading of, that guideline.” Stinson v.
United States, 508 U.S. 36, 38 (1993). “As with the
interpretation of legal texts generally, our search for the
Sentencing Commission’s intent will most often begin and
end with the text and structure of the Guidelines.” United
States v. Joey, 845 F.3d 1291, 1297 n.8 (9th Cir. 2017)
(cleaned up).
The offense guideline section applicable to Cuevas-
Lopez’s offense is § 2L1.2 (the “Unlawful Reentry Offense”
guideline). To calculate Cuevas-Lopez’s offense level, the
court must first identify the “Base Offense Level” under the
Unlawful Reentry Offense guideline. See U.S.S.G.
§ 1B1.1(a)(1). In this case, the Unlawful Reentry Offense
guideline provides a single Base Offense Level of eight
points for violations of 18 U.S.C. § 1326. Id. § 2L1.2(a).
 UNITED STATES V. CUEVAS-LOPEZ 29
The court should then turn to the “Specific Offense
Characteristics” for the Unlawful Reentry Offense,
§ 2L1.2(b), which sets out the enhancements to the Base
Offense Level, id. § 1B1.1(a)(2). Under subsection (3)(A)
of the Special Offense Characteristics, the district court must
impose a ten-level enhancement if the defendant engaged in
criminal conduct that resulted in “a conviction for a felony
offense (other than an illegal reentry offense) for which the
sentence imposed was five years or more.” Id.
2
§ 2L1.2(b)(3)(A). Subsection (3)(B) of the Special Offense
Characteristics mirrors subsection (3)(A) and requires the
district court to impose an eight-level enhancement if the
defendant’s criminal conduct resulted in “a conviction for a
felony offense (other than an illegal reentry offense) for
which the sentence imposed was two years or more.” Id.
§ 2L1.2(b)(3)(B). 3
2
Section 2L1.2(b)(3)(A) provides:
If, at any time after the defendant was ordered
deported or ordered removed from the United States
for the first time, the defendant engaged in criminal
conduct resulting in . . . a conviction for a felony
offense (other than an illegal reentry offense) for
which the sentence imposed was five years or more,
increase by 10 levels.
3
Section 2L1.2(b)(3)(B) provides:
If, at any time after the defendant was ordered
deported or ordered removed from the United States
for the first time, the defendant engaged in criminal
conduct resulting in . . . a conviction for a felony
offense (other than an illegal reentry offense) for
which the sentence imposed was two years or more,
increase by 8 levels.
30 UNITED STATES V. CUEVAS-LOPEZ
In this case, Cuevas-Lopez’s criminal conduct resulted
in “a conviction” for second degree burglary for which the
sentence imposed was three and a half years. Although
Cuevas-Lopez’s conduct also resulted in a second conviction
for a second degree burglary, the plain text of subsection
(3)(A) to the Special Offense Characteristics does not permit
a court to aggregate the sentences of multiple convictions.
See id. § 2L1.2(b)(3)(A). Rather, subsection (3)(A)
distinctly refers in the singular to “a conviction” and “the
sentence.” Id. Therefore, subsection (3)(B) of the Special
Offense Characteristics, which applies to “a conviction for a
felony offense . . . for which the sentence imposed was two
years or more,” is the applicable enhancement, and the court
should have added only eight levels to Cuevas-Lopez’s
offense level. Id. § 2L1.2(b)(3)(B).
The commentary to the Unlawful Reentry Offense
guideline, § 2L1.2, is consistent with the conclusion that the
“sentenced imposed” in this case was a three and a half year
sentence, and that the court could not aggregate sentences
from multiple convictions. The term “sentence imposed” is
defined in Comment 2 to the Unlawful Reentry Offense
guideline 4 as having “the same meaning given the term
‘sentence of imprisonment’” in “Definition and Instructions
4
Application Note 2 to § 2L1.2 provides:
“Sentence imposed” has the meaning given the term
“sentence of imprisonment” in Application Note 2 and
subsection (b) of §4A1.2 (Definitions and Instructions
for Computing Criminal History). The length of the
sentence imposed includes any term of imprisonment
given upon revocation of probation, parole, or
supervised release.
UNITED STATES V. CUEVAS-LOPEZ 31
for Computing Criminal History,” § 4A1.2(b) 5, and in
Application Note 2 6 to that section, see id. § 2L1.2 cmt. 2.
Because the cross-referenced provisions are in Chapter 4,
their purpose is to instruct the court on how to calculate the
5
Section 4A1.2(b) defines “sentence of imprisonment.” It provides:
(1) The term “sentence of imprisonment” means a
sentence of incarceration and refers to the maximum
sentence imposed.
(2) If part of a sentence of imprisonment was
suspended, “sentence of imprisonment” refers only to
the portion that was not suspended.
6
Application Note 2 to § 4A1.2 provides:
Sentence of Imprisonment.—To qualify as a sentence
of imprisonment, the defendant must have actually
served a period of imprisonment on such sentence (or,
if the defendant escaped, would have served time). See
§4A1.2(a)(3) and (b)(2). For the purposes of applying
§4A1.1(a), (b), or (c), the length of a sentence of
imprisonment is the stated maximum (e.g., in the case
of a determinate sentence of five years, the stated
maximum is five years; in the case of an indeterminate
sentence of one to five years, the stated maximum is
five years; in the case of an indeterminate sentence for
a term not to exceed five years, the stated maximum is
five years; in the case of an indeterminate sentence for
a term not to exceed the defendant’s twenty-first
birthday, the stated maximum is the amount of time in
pre-trial detention plus the amount of time between the
date of sentence and the defendant’s twenty-first
birthday). That is, criminal history points are based on
the sentence pronounced, not the length of time
actually served. See § 4A1.2(b)(1) and (2). A sentence
of probation is to be treated as a sentence under
§4A1.1(c) unless a condition of probation requiring
imprisonment of at least sixty days was imposed.
32 UNITED STATES V. CUEVAS-LOPEZ
criminal history points associated with each sentence. Id.
§ 1B1.1(a)(6).
The cross-referenced section and Application Note make
clear that the term “sentence of imprisonment” refers to the
sentence pronounced by the court on a single conviction.
The section in “Definition and Instructions for Computing
Criminal History,” § 4A1.2(b), states that a sentence of
imprisonment “refers to the maximum sentence imposed”
and does not include any portion of the sentence that was
suspended. Application Note 2 to that section explains that
“to qualify as a sentence of imprisonment, the defendant
must have actually served a period of imprisonment on such
sentence.” Id. § 4A1.2 cmt. 2. Moreover, in calculating the
criminal history points associated with a “sentence of
imprisonment,” the commentary makes clear that “criminal
history points are based on the sentence pronounced, not the
length of time actually served.” Id. In short, each reference
to “sentence of imprisonment” refers to a single sentence.
The term “sentence imposed” has “the same meaning given
the term ‘sentence of imprisonment,’” and it therefore also
refers to the sentence pronounced on a single conviction.
See id. § 2L1.2 cmt. 2.
Because the language of the Guidelines “is plain and
admits of no more than one meaning” our “sole function” is
to enforce the terms of the Guidelines pursuant to their plain
meaning. Carson Harbor Vill., Ltd. v. Unocal Corp., 270
F.3d 863, 878 (9th Cir. 2001) (en banc) (quoting Caminetti
v. United States, 242 U.S. 470, 485 (1917)). Here,
subsection (3)(A)’s ten-level enhancement does not apply to
Cuevas-Lopez because he does not have “a conviction for a
felony offense . . . for which the sentence imposed was five
years or more.” U.S.S.G. § 2L1.2(b)(3)(A). Although
Cuevas-Lopez’s conduct resulted in two sentences for three
UNITED STATES V. CUEVAS-LOPEZ 33
and a half years each, neither sentence is a sentence of “five
years or more.” Id. Therefore, the enhancement is
inapplicable.
III
Instead of applying the language of the Guidelines, the
majority relies on complex and roundabout extrapolations to
assert that an unrelated section in the Criminal History
chapter (Chapter 4) applies to the Unlawful Reentry Offense
guideline, § 2L1.2, and requires the district court to add
together Cuevas-Lopez’s two separate second-degree
burglary offenses.
A
The unrelated section on which the majority puts so
much weight is referred to as the “Single Sentence Rule.”
Id. § 4A1.2(a)(2). 7 In calculating a defendant’s criminal
7
Section 4A1.2(a)(2) provides:
If the defendant has multiple prior sentences,
determine whether those sentences are counted
separately or treated as a single sentence. Prior
sentences always are counted separately if the
sentences were imposed for offenses that were
separated by an intervening arrest (i.e., the defendant
is arrested for the first offense prior to committing the
second offense). If there is no intervening arrest, prior
sentences are counted separately unless (A) the
sentences resulted from offenses contained in the same
charging instrument; or (B) the sentences were
imposed on the same day. Treat any prior sentence
covered by (A) or (B) as a single sentence. See also
§ 4A1.1(e).
34 UNITED STATES V. CUEVAS-LOPEZ
history, the court must add a specified number of points for
each of the defendant’s prior sentences. Id. § 1B1.1(a)(2).
Chapter 4 defines the term “prior sentence” to mean “any
sentence previously imposed upon adjudication of guilt.” Id.
§ 4A1.2(a)(1). The Single Sentence Rule explains that if the
defendant “has multiple prior sentences,” the court counts
them separately if the sentences are separated by an
intervening arrest, as when the defendant was arrested for
the first offense before committing the second offense. Id.
§ 4A1.2(a)(2). Prior sentences are counted as a single
sentence if there was no intervening arrest and they “resulted
from offenses contained in the same charging instrument” or
“the sentences were imposed on the same day.” Id.
The majority concludes that a court must read the term
“sentenced imposed” in subsection (3)(A) of the Unlawful
Reentry Offense guidelines to mean the same as the term
“prior sentence” in the Single Sentence Rule. Maj. Op. 16.
Therefore, according to the majority, under
subsection (3)(A) of Unlawful Reentry Offense Guidelines,
Cuevas-Lopez’s two convictions for second-degree burglary
should be counted as a single conviction, and the two
separate three and a half year sentences imposed for each
convicted should be counted as a single sentence for “five
years or more.” Maj. Op. 16.
Notably lacking from the majority’s analysis is a single
word, phrase, or cross-reference in the Guidelines that would
authorize a court to apply the Single Sentence Rule in the
For purposes of applying §4A1.1(a), (b), and (c), if
prior sentences are treated as a single sentence, use the
longest sentence of imprisonment if concurrent
sentences were imposed. If consecutive sentences
were imposed, use the aggregate sentence of
imprisonment.
UNITED STATES V. CUEVAS-LOPEZ 35
context of the Unlawful Reentry Offense guidelines. Nor is
there any provision in the Guidelines which suggests the
term “sentence imposed” has the same meaning as “prior
sentence.” See Burgess v. United States, 553 U.S. 124, 130
(2008) (“As a rule, [a] definition which declares what a term
‘means’ . . . excludes any meaning that is not stated.”
(quoting Colautti v. Franklin, 439 U.S. 379, 392–393 n.10
(1979)). Therefore, to reach this conclusion, the majority
lets loose an entire quiver of strained arguments, none of
which hits the mark.
First, the majority brushes aside Cuevas-Lopez’s textual
argument (i.e., that nothing in subsection (3)(A) of the
Unlawful Reentry Offense guidelines incorporates the
Single Sentence Rule’s definition of “prior sentence”) on the
specious ground that subsection (3)(A) does not expressly
say that the Single Sentence Rule is not applicable. See Maj.
Op. 16 (noting that subsection (3)(A) is “simply being silent”
on that question). This is meritless. If a Guidelines section
uses a defined term (here, “sentenced imposed”) that does
not cross-reference a different defined term in a different
section (here, “prior sentence”), the natural inference is that
the definition of the unrelated term is not applicable. See
Burgess, 553 U.S. at 130; Lamie v. U.S. Trustee, 540 U.S.
526, 539 (2004) (holding that courts should not add an
“absent word” to a statute).
But the majority has more arguments up its sleeve.
According to the majority, Application Note 3 to the
Unlawful Reentry Offense guidelines 8, “evince[s] the
8
Application Note 3 to § 2L1.2 provides:
Criminal History Points.—For purposes of applying
subsections (b)(1), (b)(2), and (b)(3), use only those
36 UNITED STATES V. CUEVAS-LOPEZ
Sentencing Commission’s intent that the single sentence rule
apply” to subsection (3)(A). Maj. Op. 16. The majority’s
reasoning is difficult to follow. The majority notes that
Application Note 3 to the Unlawful Reentry Offense
guideline explains which convictions qualify as “a
conviction for a felony offense . . . for which the sentence
imposed” was a specified length of time. U.S.S.G.
§ 2L1.2(b)(3)(A); Maj. Op. 16–17. According to
Application Note 3, the court should count only a conviction
that received criminal history points pursuant to the
“Criminal History Category” guideline, §§ 4A1.1(a), (b) and
(c). Id. § 2L1.2 cmt. 3. These “Criminal History Category”
guideline subsections tell a court to add a specified number
of criminal history points for each “prior sentence of
imprisonment,” depending on the sentence’s length. Id.
§§ 4A1.1(a), (b), & (c). The majority then jumps to a
different subsection of the “Criminal History Category”
guideline, § 4A1.1(e), Maj. Op. 17, which is not mentioned
in Application Note 3, id. § 2L1.2 cmt. 3. This
(unmentioned) subsection—§ 4A1.1(e)—directs a court to
add a point for any prior sentence resulting from a conviction
of a crime of violence that did not receive a point under the
“Criminal History Category” guideline, §§ 4A1.1(a), (b) and
(c), “because such a sentence was treated as a single
sentence,” id. § 4A1.1(e). According to the majority, the
convictions that receive criminal history points under
§4A1.1(a), (b), or (c). In addition, for purposes of
subsections (b)(1)(B), (b)(2)(E), and (b)(3)(E), use
only those convictions that are counted separately
under §4A1.2(a)(2).
A conviction taken into account under subsection (b)(1), (b)(2), or (b)(3)
is not excluded from consideration of whether that conviction receives
criminal history points pursuant to Chapter Four, Part A (Criminal
History).
UNITED STATES V. CUEVAS-LOPEZ 37
language in this subsection of the Criminal History Category
guidelines, § 4A1.1(e) (although not mentioned in
Application Note 3), shows that the Single Sentence Rule is
incorporated into determining whether a defendant’s
criminal conduct resulted in “a conviction” for an offense
“for which the sentence imposed” was five years or more
under subsection (3)(A) of the Unlawful Reentry Offense
guidelines. Maj. Op. 17.
This attenuated reasoning for discerning the Sentencing
Commission’s intent is groundless. “[T]he primary
touchstone for discovering that intent is the text of the
Guidelines manual” itself. Joey, 845 F.3d at 1297. On its
face, the instruction under the subsection of the “Criminal
History Category” guideline, § 4A1.1(e) (i.e., that a court
should add a point for any prior sentence resulting from a
conviction of a crime of violence that did not receive a point
because it was treated as a single sentence), is completely
irrelevant to the question before us. See U.S.S.G.
§ 4A1.1(e). At a minimum, this instruction about treatment
of aggregated sentences for crimes of violence does not
direct a court to consider Cuevas-Lopez’s two convictions
and sentences for second degree burglary as “a conviction”
for which a single, seven-year sentence was imposed. See
id. There is nothing in this unrelated guideline section that
could override the plain text of subsection 3(A), the
applicable Unlawful Reentry Offense guideline.
One more example of the majority’s selective tour
through the Guidelines will suffice. Application Note 3 to
the Unlawful Reentry Offense guidelines also explains that
if the defendant has prior convictions for multiple
misdemeanors, the court should count only those
convictions that would be counted separately under the
Single Sentence Rule. Maj. Op. 17–18. The majority argues
38 UNITED STATES V. CUEVAS-LOPEZ
that this portion of Application Note 3 “suggests” that a court
should apply the Single Sentence Rule if a defendant has
prior convictions for multiple felonies under subsection
(3)(A). Maj. Op. 17–18. But of course, the language from
Application Note 3 raises exactly the opposite inference: the
Sentencing Commission knew how to instruct a court to
consider the Single Sentence Rule for multiple
misdemeanors, and did not do so for felony counts described
in subsection (3)(A). See, e.g., Whitfield v. United States,
543 U.S. 209, 216 (2005) (“Congress has included an
express overt-act requirement in at least 22 other current
conspiracy statutes, clearly demonstrating that it knows how
to impose such a requirement when it wishes to do so.”).
The majority’s remaining catalog of textual arguments
based on irrelevant Guidelines sections are equally
unsupported, and merit no further discussion here. 9
B
The majority’s arguments based on the Amendment to
Section 2L1.2 fare no better. Maj. Op. 19–22.
Prior to the 2016 amendments, § 2L1.2(b) defined the
Special Offense Characteristics enhancements by reference
to federal generic offenses. See U.S.S.G. § 2L1.2 (2015).
For instance, the Specific Offense subsection required the
imposition of an enhancement for defendants who
previously had been convicted of a specified drug trafficking
offense, crime of violence, firearms offense and the like. Id.
9
The majority replicates the errors of the Fourth and the Fifth
Circuits in United States v. Martinez-Varela, 531 F.3d 298 (4th Cir.
2008) and United States v. Garcia-Sanchez, 916 F.3d 522, 526 (5th Cir.
2019). Maj. Op. 23–25. Because those cases are also contrary to the
plain text of the Guidelines, we should decline to follow them.
UNITED STATES V. CUEVAS-LOPEZ 39
§ 2L1.2(b)(1)(A) (2015). In order to determine whether a
prior conviction qualified as one of these categories, the
court was required to use the categorical approach set forth
in Taylor v. United States, 495 U.S. 575 (1990), and its
progeny. See U.S.S.G. § 2L1.2 (2015). Courts complained
that applying this categorical approach was “overly complex
and resource-intensive.” U.S.S.G. Supp. to 5 app. C, amend.
802, at 155 (Nov. 1, 2016). Consequently, in 2016, the
Sentencing Commission decided to apply “a much simpler
sentence-imposed model” in which “[t]he level of the
sentencing enhancement for a prior conviction generally will
be determined by the length of the sentence imposed for the
prior offense.” Id. It also noted that the “length of sentence
imposed by a sentencing court is a strong indicator of the
court’s assessment of the seriousness of the predicate offense
at the time.” Id. at 157.
The majority argues that because the Amendment states
that the new approach for accounting for prior convictions
was “similar to how Chapter Four of the Guidelines Manual
determines a defendant’s criminal history score based on his
or her prior convictions,” id. at 155–56, the Sentencing
Commission must have intended to incorporate Chapter 4’s
Single Sentence Rule into the Unlawful Reentry Offense
guideline, Maj. Op. at 20–21. Like the majority’s other
arguments, this one too is meritless. First, the Amendment’s
brief references to Chapter Four of the Guidelines cannot
override the plain language of the Guidelines text. Stinson,
508 U.S. at 38 (holding that Guidelines commentary is not
authoritative if it is inconsistent with the guideline itself).
But here, there is no inconsistency between the Amendment
and the Guidelines, because the Amendment does not even
reference the Single Sentence Rule, and there is thus no basis
for concluding the rule is incorporated in the Unlawful
40 UNITED STATES V. CUEVAS-LOPEZ
Reentry Offense guideline. See U.S.S.G. Supp. to 5 app. C,
amend. 802, at 155–57 (Nov. 1, 2016).
Moreover, even if it were proper to stray from the text of
the Guidelines, the reasoning expressed in the Amendment
is more consistent with the conclusion that courts should not
apply the Single Sentence Rule when determining the
Special Offense Characteristics under the Unlawful Reentry
Offense guidelines. Id. The Commission explained that it
used the “the length of sentence imposed” because the length
of a sentence “is a strong indicator of the court’s assessment
of the seriousness of the predicate offense.” Id. at 157. In
other words, the length of the sentence serves as a proxy for
the seriousness of the crime. But if that was the
Commission’s intent, then it is illogical to aggregate crimes.
Plainly, two second-degree burglaries which each receive
three-year sentences are not as serious as, for example, an
armed robbery which results in a six-year sentence. Thus, to
the extent that the Amendments are relevant, they support
the same outcome. 10
10
The majority asserts that 18 U.S.C. § 3584 (which requires a
sentencing court to consider various factors when determining whether
prison terms imposed for each offense are to run consecutively or
concurrently) supports its argument that the Single Sentence Rule
captures the seriousness of a defendant’s prior offense, and therefore is
a “baseline assumption” underlying the Guidelines. Maj. Op. 18, 22. Of
course, § 3584 provides no guidance on how to interpret the Unlawful
Reentry Offense guidelines. Moreover, the court’s duty to determine the
appropriate total sentence for the defendant under § 3584, see Dean v.
United States, 137 S. Ct. 1170, 1175–76 (2017), is distinct from the
question before us here: whether a single offense is sufficiently serious
to warrant an enhancement.
UNITED STATES V. CUEVAS-LOPEZ 41
***
Under the plain language of the Guidelines, Cuevas-
Lopez does not have “a conviction for a felony offense . . .
for which the sentence imposed was five years or more.”
U.S.S.G. § 2L1.2. This “language is plain and admits of no
more than one meaning,” and therefore, our “sole function”
is to enforce the terms of the Guidelines pursuant to their
plain meaning. Carson Harbor Vill., Ltd., 270 F.3d at 878.
Here the majority concedes there is no “grievous ambiguity
or uncertainty” in the Guidelines here, Maj. Op. 25 n.14, but
nevertheless declines to give Cuevas-Lopez the benefit of
the Guidelines’ plain language. Because we should not
increase the applicable Guidelines range based solely on
inferences regarding the Sentencing Commission’s
unspoken intent, Cuevas-Lopez is entitled to a Guidelines
range of 30 to 37 months, rather than the 37 to 46 months
range erroneously calculated by the district court. I dissent.