United States v. Alvarez-Hernandez ( 2007 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 06-10284
Plaintiff-Appellee,
v.  D.C. No.
CR-05-00223-LRH
VICENTE ALVAREZ-HERNANDEZ,
OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the District of Nevada
Larry R. Hicks, District Judge, Presiding
Submitted October 20, 2006*
San Francisco, California
Filed February 28, 2007
Before: Andrew J. Kleinfeld and Jay S. Bybee,
Circuit Judges, and Robert H. Whaley,** District Judge.
Opinion by Judge Bybee
*This panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
**The Honorable Robert H. Whaley, United States District Judge for
the Eastern District of Washington, sitting by designation.
2259
UNITED STATES v. ALVAREZ-HERNANDEZ 2261
COUNSEL
Michael K. Powell, Assistant Federal Public Defender, Reno,
Nevada, for the defendant-appellant.
2262 UNITED STATES v. ALVAREZ-HERNANDEZ
Ronald C. Ranchow, Assistant United States Attorney, Reno,
Nevada, for the plaintiff-appellee.
OPINION
BYBEE, Circuit Judge:
Defendant-Appellant Vicente Alvarez-Hernandez (“Appel-
lant”) appeals his sentence for being an illegal alien found in
the United States following deportation. Appellant argues that
the district court’s determination that he had previously been
“convicted for a felony drug trafficking offense for which the
sentence imposed was 13 months or less,” U.S.S.G.
§ 2L1.2(b)(1)(B), was erroneous due to a 2003 amendment to
the Sentencing Guidelines’ authoritative commentary. That
amendment’s effect is a question of first impression in this
circuit. For the reasons set forth below, we hold that the dis-
trict court erred in applying § 2L1.2(b)(1)(B) to Appellant.
I. FACTS AND PROCEEDINGS BELOW
Appellant is a Mexican national. In 1991, Appellant
received a five-year suspended sentence, three years proba-
tion, and a fine, for the unlawful sale of a controlled substance
in violation of Nevada Revised Statute § 453.321. Following
that conviction, Appellant was deported. Appellant later
returned to the United States and was deported again on May
20, 1999. Appellant again reentered the United States, and on
November 16, 2005, he was indicted pursuant to 8 U.S.C.
§ 1326 for being an illegal alien found in the United States
following deportation. Appellant pled guilty to that charge on
February 9, 2006.
On April 21, 2006, the district court conducted a sentencing
hearing at which Appellant and the United States agreed that,
under the Sentencing Guidelines, Appellant’s base offense
UNITED STATES v. ALVAREZ-HERNANDEZ 2263
level was eight and that he was entitled to a three-level down-
ward departure for acceptance of responsibility. The parties
disagreed, however, over whether Appellant’s fully suspended
and probated sentence for unlawful sale of a controlled sub-
stance constituted “a felony drug trafficking offense for which
the sentence imposed was 13 months or less” triggering
U.S.S.G. § 2L1.2(b)(1)(B)’s twelve-level enhancement provi-
sion. Appellant argued, as he does now, that a fully suspended
and probated sentence does not qualify as a “sentence
imposed” under § 2L1.2(b)(1)(B).
The district court found Appellant’s argument unconvinc-
ing. Instead, the district court reasoned that under
§ 2L1.2(b)(1)(B)’s plain text, any felony drug trafficking sen-
tence of 13 months or less—even if fully suspended and
probated—required a twelve-level sentencing enhancement.
Consequently, as Appellant did not dispute that his 1991
Nevada state conviction constituted a felony drug trafficking
offense, the district court found Appellant eligible for the
twelve-level enhancement. Announcing that the Sentencing
Guidelines provided the appropriate sentencing range, the dis-
trict court then applied that enhancement and sentenced
Appellant to twenty-four months of imprisonment. Appellant
now appeals on an expedited basis.
II. DISCUSSION
Both the United States and Appellant agree that Appellant’s
conviction under 8 U.S.C. § 1326 qualifies for an enhance-
ment under U.S.S.G. § 2L1.2(b)(1). That section instructs the
sentencing court as follows:
Apply the Greatest:
If the defendant previously was deported, or unlaw-
fully remained in the United States, after—
(A) a conviction for a felony that is (i) a
drug trafficking offense for which the sen-
2264 UNITED STATES v. ALVAREZ-HERNANDEZ
tence imposed exceeded 13 months . . .
increase by 16 levels;
(B) a conviction for a felony drug traffick-
ing offense for which the sentence imposed
was 13 months or less, increase by 12
levels;
(C) a conviction for an aggravated felony,
increase by 8 levels;
(D) a conviction for any other felony,
increase by 4 levels; or
(E) three or more convictions for misde-
meanors that are crimes of violence or drug
trafficking offenses, increase by 4 levels.
U.S.S.G. § 2L1.2(b)(1) (emphasis added). The district court
sentenced Appellant pursuant to § 2L1.2(b)(1)(B). Appellant
concedes that his 1991 conviction constituted a felony drug
trafficking offense, but he argues that he does not fall under
§ 2L1.2(b)(1)(B) because his sentence for that previous con-
viction was fully suspended and probated and, therefore, did
not constitute a “sentence imposed.” Instead, Appellant main-
tains that he should have been sentenced pursuant to
§ 2L1.2(b)(1)(C), which does not have a similar “sentence
imposed” requirement.
Our task is two-fold. First, we must determine whether
Appellant’s 1991 conviction constitutes a “sentence imposed”
under § 2L1.2(b)(1)(B). If it does, we must proceed to review
the reasonableness of Appellant’s sentence. See United States
v. Cantrell, 433 F.3d 1269, 1279 (9th Cir. 2006). If it does not
and “we determine that [Appellant’s] sentence resulted from
an incorrect application of the Sentencing Guidelines,” we
must decide whether “the error in application was . . . harm-
UNITED STATES v. ALVAREZ-HERNANDEZ 2265
less.” Id. With that in mind, we turn to Appellant’s argument
that the district court misapplied the Guidelines.
As before United States v. Booker, 543 U.S. 220 (2005), we
“review ‘the district court’s interpretation of the Sentencing
Guidelines de novo, the district court’s application of the Sen-
tencing Guidelines to the facts of [a] case for abuse of discre-
tion, and the district court’s factual findings for clear error.’ ”
Cantrell, 433 F.3d at 1279 (quoting United States v. Kimbrew,
406 F.3d 1149, 1151 (9th Cir. 2005)); accord United States
v. Mix, 457 F.3d 906, 911 (9th Cir. 2006). Furthermore, as
before Booker, “[c]ommentary in the Guidelines Manual that
interprets or explains a guideline is authoritative unless it vio-
lates the Constitution or a federal statute, or is inconsistent
with, or a plainly erroneous reading of, that guideline.” United
States v. Thornton, 444 F.3d 1163, 1165 n.3 (9th Cir. 2006);
accord United States v. Asberry, 394 F.3d 712, 716 n.5 (9th
Cir. 2005) (utilizing the same test pre-Booker, 543 U.S. 220);
United States v. Wright, 373 F.3d 935, 942 (9th Cir. 2004).
[1] Before November 2003, § 2L1.2(b)(1)’s commentary
provided that, “[i]f all or any part of a sentence of imprison-
ment was probated, suspended, deferred, or stayed, ‘sentence
imposed’ refers only to the portion that was not probated, sus-
pended, deferred, or stayed.” U.S. SENTENCING GUIDELINES
MANUAL § 2L1.2 cmt. n.1(A)(iv) (2002). In 2003, however,
the Sentencing Commission amended § 2L1.2(b)(1)’s com-
mentary “by clarifying the meaning of some of the terms used
in [that section].” U.S. SENTENCING GUIDELINES MANUAL app.
C, vol. 2, p. 401 (2003). The revised commentary now pro-
vides that the term “ ‘[s]entence imposed’ has the meaning
given the term ‘sentence of imprisonment’ in Application
Note 2 and subsection (b) of § 4A1.2.” U.S. SENTENCING
GUIDELINES MANUAL § 2L1.2 cmt. n.1(B)(vii) (2004). Section
4A1.2(b) in turn provides that “[t]he term ‘sentence of impris-
onment’ means a sentence of incarceration and refers to the
maximum sentence imposed” and that “[i]f part of a sentence
of imprisonment was suspended, ‘sentence of imprisonment’
2266 UNITED STATES v. ALVAREZ-HERNANDEZ
refers only to the portion that was not suspended.” U.S.S.G.
§ 4A1.2(b) (emphasis added). Application Note 2 adds, how-
ever, that “[t]o qualify as a sentence of imprisonment, the
defendant must have actually served a period of imprisonment
on such sentence.” U.S. SENTENCING GUIDELINES MANUAL
§ 4A1.2 cmt. n.2 (2004) (emphasis added).
Before the 2003 amendment, we noted in dicta that, “[a]
sentence of probation, with or without the two months’ incar-
ceration, by definition is a sentence of 13 months or less”
under § 2L1.2(b)(1)(B), and therefore, even if a defendant
received “zero months” of actual imprisonment, his or her
sentence still triggered § 2L1.2(b)(1)(B)’s twelve-level
enhancement. United States v. Hernandez-Valdovinos, 352
F.3d 1243, 1249 (9th Cir. 2003).1 Our sister circuits reached
similar conclusions. See, e.g., United States v. Garcia-
Rodriguez, 415 F.3d 452, 455-56 (5th Cir. 2005) (construing
the pre-2003 commentary and affirming a district court’s
application of § 2L1.2(b)(1)(B) to a defendant who received
probation and served no jail time); United States v. Mullings,
330 F.3d 123, 125 (2d Cir. 2003) (per curiam) (“hold[ing] that
a non-custodial sentence requiring the appellant to pay only
a monetary fine constitutes ‘a conviction . . . for which the
sentence imposed was 13 months or less’ pursuant to
U.S.S.G. § 2L1.2(b)(1)(B)”).
In fact, before the commentary was amended, at least one
district court rejected precisely the same argument that Appel-
lant now advances. See United States v. Cordero, 256 F.
Supp. 2d 1378 (N.D. Ga. 2003). In that case, the defendant
argued that because he was given probation for a prior drug
trafficking offense and served no actual time, he did not qual-
1
The fact that Hernandez-Valdovinos involved a probationary and not
a suspended sentence is not grounds for distinguishing the case because
the pre-2003 commentary treated probated and suspended sentences in the
same manner. See, e.g., U.S. SENTENCING GUIDELINES MANUAL § 2L1.2 cmt.
n.1(B)(iv) (2002).
UNITED STATES v. ALVAREZ-HERNANDEZ 2267
ify for a twelve-level sentencing enhancement. Id. at 1380-81.2
The district court, however, held that the pre-2003 commen-
tary merely “subtracted out the . . . part of the sentence that
was probated, such that the sentence imposed would” be zero
months when a sentence was fully probated or suspended. Id.
at 1381 (internal quotation marks omitted). As § 2L1.2(b)(1)’s
text indicates that all drug trafficking offences trigger a
twelve or sixteen-level enhancement and “[z]ero is clearly a
number less than 13,” the court held that the twelve-level
enhancement applied to the defendant. Id. (internal quotation
marks omitted).
[2] In contrast to that case, we have interpreted § 4A1.2 and
its commentary defining a “sentence of imprisonment”—
which the post-2003 commentary states defines the term “sen-
tence imposed”—as requiring that “a defendant must have
actually served some time in custody for his sentence to qual-
ify as a sentence of imprisonment.” United States v. Mendoza-
Morales, 347 F.3d 772, 775 (9th Cir. 2003) (internal quota-
tion marks omitted); see also United States v. Schomburg, 929
F.2d 505, 507 (9th Cir. 1991). Other circuits have reached
similar conclusions. See, e.g., United States v. Murphy, 241
F.3d 447, 459-60 (6th Cir. 2001) (noting that a fully sus-
pended sentence does not qualify as a sentence of imprison-
ment); United States v. Buter, 229 F.3d 1077, 1078-79 (11th
2
Cordero’s facts indicate that the defendant “was discovered by the INS
. . . while sitting in jail awaiting probation revocation proceedings con-
nected with either the drug trafficking conviction or another prior convic-
tion.” 256 F. Supp. 2d at 1380. The district court appears to have
proceeded on the assumption that the pending revocation concerned the
non-drug trafficking offense, because revocation and sentencing for the
drug trafficking offense would have automatically triggered
§ 2L1.2(b)(1)(B)’s enhancement provisions. See id.; see also United States
v. Moreno-Cisneros, 319 F.3d 456, 458 (9th Cir. 2003) (“We are per-
suaded that the prison sentence imposed after revocation of probation
should be included in calculating the length of the sentence imposed for
the prior offense.”); U.S. SENTENCING GUIDELINES MANUAL app. C, vol. 2,
p. 402 (2003) (commentary to Amendment 658).
2268 UNITED STATES v. ALVAREZ-HERNANDEZ
Cir. 2000) (holding that a probationary sentence did not con-
stitute a sentence of imprisonment and noting that a sus-
pended sentence does not qualify as a sentence of
imprisonment); United States v. Staples, 202 F.3d 992, 997-98
(7th Cir. 2000) (noting a sentence for time served, unlike a
totally suspended sentence, qualifies as a sentence of impris-
onment); United States v. Brown, 54 F.3d 234, 240 (5th Cir.
1995) (requiring “some time actually be served on [a] sen-
tence before” that sentence may constitute a sentence of
imprisonment); United States v. Thompson, 925 F.2d 234, 235
(8th Cir. 1991) (holding “a suspended imposition of sentence
does not count as a ‘sentence of imprisonment’ for purposes
of determining criminal history points”); United States v.
McCrary, 887 F.2d 485, 489 (4th Cir. 1989) (per curiam)
(holding a fully suspended sentence does not qualify as a sen-
tence of imprisonment), overruled on other grounds by,
United States v. Underwood, 970 F.2d 1336 (4th Cir. 1992).
Under the rules of statutory construction, we presume that
Congress acts “with awareness of relevant judicial decisions.”
United States v. Male Juvenile, 280 F.3d 1008, 1016 (9th Cir.
2002); accord United States v. Hunter, 101 F.3d 82, 85 (9th
Cir. 1996) (“[A]s a matter of statutory construction, we ‘pre-
sume that Congress is knowledgeable about existing law per-
tinent to the legislation it enacts.’ ” (quoting Goodyear Atomic
Corp. v. Miller, 486 U.S. 174, 184-85 (1988)). We also “pre-
sume that when Congress amends a statute, it is knowledge-
able about judicial decisions interpreting the prior
legislation,” Porter v. Bd. of Trs. of Manhattan Beach Unified
Sch. Dist., 307 F.3d 1064, 1072 (9th Cir. 2002), and “when
‘judicial interpretations have settled the meaning of an exist-
ing statutory provision, repetition of the same language in a
new statute indicates, as a general matter, the intent to incor-
porate its . . . judicial interpretations as well.’ ” Merrill Lynch
v. Dabit, 126 S. Ct. 1503, 1513 (2006) (quoting Bragdon v.
Abbott, 524 U.S. 624, 645 (1998)); accord Lorillard v. Pons,
434 U.S. 575, 581 (1978) (“[W]here, as here, Congress adopts
a new law incorporating sections of a prior law, Congress nor-
UNITED STATES v. ALVAREZ-HERNANDEZ 2269
mally can be presumed to have had knowledge of the interpre-
tation given to the incorporated law, at least insofar as it
affects the new statute.”); Miranda B. v. Kitzhaber, 328 F.3d
1181, 1189 (9th Cir. 2003) (holding that “Congress is pre-
sumed to know the law and to have incorporated judicial
interpretations when adopting a preexisting remedial
scheme”); see also Cannon v. Univ. of Chicago, 441 U.S. 677,
696-98 (1979) (holding that in interpreting a newly enacted
statute using the same words as an existing statute, Congress
is presumed to have intended the same construction to apply
to the new statute as applied to the existing statute).
[3] Because we “appl[y] the rules of statutory construction
when interpreting the guidelines,” United States v. Gonzalez,
262 F.3d 867, 869 (9th Cir. 2001) (per curiam), consistent
with those principles, we presume that the Sentencing
Commission—like Congress—acts with an awareness of the
relevant case law in amending the Guidelines and their com-
mentary. We must, therefore, presume that in amending
§ 2L1.2(b)(1)’s commentary, the Sentencing Commission was
aware of our—and our sister circuits’—holding that to qualify
as a “sentence of imprisonment” under § 4A1.2, actual jail
time is required. Consequently, in accordance with the rules
of statutory construction, when the Sentencing Commission
amended the commentary to define “sentence imposed” in the
same manner as “sentence of imprisonment,” it did so with
the knowledge—and intention—that we would require actual
imprisonment for a previous conviction to trigger
§ 2L1.2(b)(1)(B). The district court’s determination to the
contrary was, therefore, erroneous.
Attempting to avoid that conclusion, the United States
argues that we should construe the 2003 amendment consis-
tent with § 2L1.2(b)(1)’s plain text and legislative history. For
instance, citing our opinion in United States v. Garcia-Gomez,
380 F.3d 1167 (9th Cir. 2004), the United States asserts that
under § 2L1.2(b)(1)’s plain text, all felony drug trafficking
felony convictions must fall under either § 2L1.2(b)(1)(A) or
2270 UNITED STATES v. ALVAREZ-HERNANDEZ
§ 2L1.2(b)(1)(B). Though the government is correct that
§ 2L1.2(b)(1) references felony drug trafficking “convictions”
exclusively in those sections, this argument is ultimately
unpersuasive because it entirely neglects the second half of
those sections, which require the existence of a “sentence
imposed.” It does no violence to the text to conclude that to
fall under § 2L1.2(b)(1)(B), actual imprisonment is required.
Indeed, in as much as the commentary, which we must accept
as authoritative, directs us to construe “sentence imposed” as
having the same meaning as “sentence of imprisonment in
§ 4A1.2, any plain reading of § 2L.1.2(b)(1) must consider
§ 4A1.2 as well, and that section unambiguously states that
“ ‘sentence of imprisonment’ refers only to the portion [of the
sentence] that was not suspended.”
In support of its position, the United States also posits that
nothing in the 2003 amendment’s legislative history indicates
that the Sentencing Commission intended to overrule the view
that any felony drug trafficking sentence for 13 months or less
triggers § 2L1.2(b)(1)(B) and that we should abide by that
finding. Indeed, the government points out that the 2003
amendment was intended only to clarify that “[t]he length of
the sentence of imprisonment includes any term of imprison-
ment given upon revocation of probation, parole, or super-
vised release.” U.S. SENTENCING GUIDELINES MANUAL app. C,
vol. 2, p. 402 (2003). Moreover, the United States directs us
to § 2L1.2(b)(1)’s official 2001 enactment history, which
states that:
[T]he 16-level enhancement is warranted if the
defendant previously was deported, or unlawfully
remained in the United States, after a conviction for
certain serious offenses, specifically, a drug traffick-
ing offense for which the sentence imposed
exceeded 13 months, a felony that is a crime of vio-
lence, a felony that is a firearms offense, a felony
that is a national security or terrorism offense, a fel-
ony that is a human trafficking offense, and a felony
UNITED STATES v. ALVAREZ-HERNANDEZ 2271
that is an alien smuggling offense committed for
profit. Other felony drug trafficking offenses will
receive a 12-level enhancement. All other aggra-
vated felony offenses will receive an 8-level
enhancement.
U.S. SENTENCING COMMISSION GUIDELINES MANUAL SUPPLEMENT
to Appendix C, Amendment 632, at 218 (emphasis added).
According to the United States, the quoted language unequiv-
ocally indicates that in enacting § 2L1.2(b)(1), the Sentencing
Commission intended that all previous felony drug trafficking
convictions would trigger a sixteen or twelve-level enhance-
ment.
We reject the United States’ argument that we should con-
strue the 2003 Amendment consistently with its legislative
history, however, because it asks us to ignore what the com-
mentary actually says in favor of what the Sentencing Com-
mission might have been thinking. Moreover, we find the
United States’ argument based on the 2001 enactment history
wholly unpersuasive because it essentially asks us to ignore
what the Sentencing Commission actually adopted in 2003—
namely, an amendment defining “sentence imposed” in the
same manner as the term “sentence of imprisonment” in
§ 4A1.2—in favor of legislative history circa 2001. Even
aside from that conflict, however, we would still be com-
pelled to reject the United States’ argument because it violates
the bedrock principle that when a legislative body “alters the
wording of a statute,” it is presumed to have “intended a
change in the law.” Hiivala v. Wood, 195 F.3d 1098, 1103
(9th Cir. 1999); see also United States v. Motamedi, 767 F.2d
1403, 1406 (9th Cir. 1985) (“[W]e must presume that [a legis-
lative body] acts with deliberation, rather than by inadver-
tence, when it drafts [enactments].”)
[4] Finally, as Appellant’s sentence “resulted from an
incorrect application of the Sentencing Guidelines,” we must
determine whether that “error in application was . . . harm-
2272 UNITED STATES v. ALVAREZ-HERNANDEZ
less.” Cantrell, 433 F.3d at 1279. In imposing Appellant’s
sentence, the district court stated that the Guidelines provided
the appropriate sentence and announced its intention to abide
by them. Because the district court erred in interpreting
§ 2L1.2(b)(1), however, it did not abide by the Guidelines,
and we do not know if the district court might have departed
from the Guidelines if it had known that Appellant did not
qualify for § 2L1.2(b)(1)(B)’s twelve-level enhancement. Fur-
thermore, even if the district court would not have departed
under our interpretation of § 2L1.2(b)(1), the district court’s
interpretation was still not harmless because the sentence
imposed by the district court—twenty-four months—
exceeded the high end of the correct Guidelines range. See
U.S. SENTENCING GUIDELINES MANUAL, app. Sentencing Table.
Accordingly, we hold that the error was not harmless.
III. CONCLUSION
[5] Appellant’s sentence was based on a misapplication of
the Guidelines, and that misapplication was not harmless. We,
therefore, vacate Appellant’s sentence and remand for sen-
tencing.
REVERSED AND REMANDED.