United States v. Diaz-Luevano ( 2007 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 05-50129
Plaintiff-Appellee,
v.  D.C. No.
CR-04-01371-DMS
LUIS DIAZ-LUEVANO,
OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the Southern District of California
Dana M. Sabraw, District Judge, Presiding
Submitted February 7, 2006*
Vacated March 1, 2006
Resubmitted July 11, 2007
Pasadena, California
Filed July 18, 2007
Before: Alex Kozinski, Stephen S. Trott, and Carlos T. Bea,
Circuit Judges.
Per Curiam Opinion
*This panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
8723
UNITED STATES v. DIAZ-LUEVANO 8725
COUNSEL
Marisa L. Dersey & Zandra L. Lopez, Federal Defenders of
San Diego, Inc., San Diego, California, for the defendant-
appellant.
Carol C. Lam, Roger W. Haines, Jr., Garrett M. Heenan &
Mary D. Fan, United States Attorney, San Diego, California,
for the plaintiff-appellee.
OPINION
PER CURIAM:
Appellant Luis Diaz-Luevano appeals his conviction and
sentence for illegal reentry in violation of 8 U.S.C. § 1326.
We have jurisdiction under 28 U.S.C. § 1291, and we affirm.1
We clarify that our holding in Morales-Izquierdo v. Gonzales,
486 F.3d 484 (9th Cir. 2007) (en banc), does not overrule
United States v. Luna-Madellaga, 315 F.3d 1224 (9th Cir.
2003). Prior physical removal remains one of the bases for
sentence enhancement under 8 U.S.C. § 1326 and United
States Sentencing Guideline (“U.S.S.G.”) § 2L1.2.
I.
Appellant, a Mexican national entered the United States
without permission. He was deported and taken out of this
country for the first time in 1996. He then illegally returned
to the United States a second time. Appellant’s illegal pres-
ence came to immigration officials’ attention in 1998 when he
was convicted of assault with intent to commit felony rape, in
violation of California Penal Code § 220. In 1999, an immi-
gration officer reinstated Appellant’s prior deportation order,
1
The rest of Appellant’s arguments, which are specific to his case, are
disposed of in the accompanying memorandum disposition.
8726 UNITED STATES v. DIAZ-LUEVANO
and in 2000, Appellant was fingerprinted, deported, and again
taken out of this country.
Appellant was arrested in 2004 for illegally reentering the
United States a third time. A jury found Appellant had ille-
gally reentered the country after being removed a second time
in 2000. Based on this finding, the jury convicted Appellant
of being found in this country after being deported from it, in
violation of 8 U.S.C. § 1326(a).
Section 1326(a) governs “any alien who has been . . .
deported, or removed . . . and thereafter . . . is at any time
found in, the United States.” 8 U.S.C. § 1326(a). If the “re-
moval was subsequent to a conviction for commission of an
aggravated felony,” the alien may be fined and imprisoned for
up to twenty years. 8 U.S.C. § 1326(b)(2). Additionally,
U.S.S.G. § 2L1.2 provides that if a defendant previously was
deported, or unlawfully remained in the United States after a
felony conviction that is a crime of violence, the judge may
increase the defendant’s sentence by 16 levels. U.S.S.G.
§ 2L1.2 (2004).
At the sentencing hearing the trial judge: (1) found the base
offense level 8, under U.S.S.G. § 2L1.2 for Appellant’s viola-
tion of 8 U.S.C. § 1326(a); (2) adjusted the sentence upward
16 levels pursuant to U.S.S.G. § 2L1.2 because Appellant’s
physical deportation in 2000 occurred after his 1998 convic-
tion for California Penal Code § 220, assault with intent to
commit felony rape; and (3) adjusted the sentence downward
2 levels for acceptance of responsibility. Based on the infor-
mation in the Pre-Sentencing Report, this qualified Appellant
for an offense level of 22, with a criminal history score of 11
and a criminal history category of V. The resulting Guidelines
calculation, under the now advisory Sentencing Guidelines,
was 77-96 months. The judge sentenced Appellant to 86
months’ imprisonment and 3 years’ supervised release.
Appellant then appealed his conviction and sentence.
UNITED STATES v. DIAZ-LUEVANO 8727
II.
Appellant claims the district court decision enhancing his
sentence under 8 U.S.C. § 1326 and U.S.S.G. § 2L1.2 based
on the reinstated deportation order2 was an error because
Morales-Izquierdo held that a reinstated removal order is not
a species of removal. Appellant incorrectly asserts that
Morales-Izquierdo rejected the analysis in Luna-Madellaga.
[1] What constitutes a “removal” affects the severity of
criminal reentry penalties. The maximum sentence for illegal
reentry increases significantly if the alien was previously
removed after having been convicted of certain crimes. See 8
U.S.C. § 1326(b). A conviction for unlawfully entering or
remaining in the United States will be enhanced “[i]f the
defendant previously was deported, or unlawfully remained in
the United States, after” a conviction for certain crimes.
U.S.S.G. § 2L1.2(b)(1); see also id. § 2L1.2 n.1(A)(i) (“A
defendant shall be considered to be deported after a convic-
tion if the defendant has been removed or has departed the
United States while an order of exclusion, deportation, or
removal was outstanding.”).
In Morales-Izquierdo, we held that reinstatement of a prior
removal is “not a species of removal,” but a separate proce-
dure, and thus the agency is not required to provide a hearing
before an immigration judge. Morales-Izquierdo, 486 F.3d at
490-91. Appellant argues this means that the reinstatement of
a prior order of removal does not constitute a “removal” for
criminal immigration purposes because it is not a species of
2
Morales-Izquierdo also involved a reinstated deportation order.
Morales-Izquierdo, 486 F.3d at 488 n.3. Morales-Izquierdo’s principle
applies equally to reinstatements of deportation and removal orders. The
Illegal Immigration Reform and Immigrant Responsibility Act of 1996
(“IIRIRA”) eliminated the previous legal distinction between deportation,
removal, and exclusion, merging all of them into a broader category titled
“removal.” See United States v. Lopez-Gonzales, 183 F.3d 933, 934-35
(9th Cir. 1999).
8728 UNITED STATES v. DIAZ-LUEVANO
removal. This is inaccurate. In United States v. Luna-
Madellaga, 315 F.3d 1224 (9th Cir. 2003), we held that the
alien’s physical removal is what matters for purposes of crim-
inal sanctions, regardless of the procedure employed; remov-
als pursuant to reinstated orders of removal thus count for
purposes of 8 U.S.C. § 1326(b) and U.S.S.G. § 2L1.2:
Section 1326 speaks only of “removal.” All that the
statute requires is that the alien reenter the United
States illegally after having been removed subse-
quent to an aggravated felony conviction. It plainly
turns on the alien’s physical removal—not the order
of removal. Similarly, the plain language of [8
U.S.C.] § 1231(a)(5) contemplates a second physical
removal under a reinstated prior order. As it pro-
vides, a reentering alien “shall be removed under the
prior order at any time after the reentry.” Here,
Luna-Madellaga was physically removed twice, once
in 1995, and again in 1999. That the 1999 removal
was accomplished by reinstatement of his 1995
removal order is of no consequence. Therefore, he is
subject to the enhanced penalty prescribed by
§ 1326(b)(2) and U.S.S.G. § 2L1.2(b)(1)(A).
Id. at 1226 (footnote omitted).3
[2] Luna-Madellaga held that what matters for criminal
reentry purposes is the date of “the alien’s physical removal—
3
Luna-Madellaga involved a similar challenge. Luna-Madellaga was
ordered removed in 1995, reentered illegally, was convicted of a felony
crime of violence in 1996, and was removed again based on reinstatement
of his original removal order. Luna-Madellaga returned, and was then con-
victed for unlawful re-entry of a deported alien in violation of 8 U.S.C.
§ 1326(a). The court affirmed a sentence enhanced for “ ‘removal [that]
was subsequent to a conviction for commission of an aggravated felony,’
where the removal that followed such a conviction was accomplished
through reinstatement of a prior removal order pursuant to 8 U.S.C.
§ 1231(a)(5).” Luna-Madellaga, 315 F.3d at 1225.
UNITED STATES v. DIAZ-LUEVANO 8729
not the order of removal.” Id. Morales-Izquierdo does not
deal with whether reinstatement of a removal order includes
a physical removal, which it does. Luna-Madellaga is still
good law.
[3] Sentence enhancement based on reinstated removal
after a crime of violence is not contrary to Morales-
Izquierdo’s statement that “[t]he reinstatement order imposes
no civil or criminal penalties.” Morales-Izquierdo, 486 F.3d
at 498. It is the alien’s illegal reentry that U.S.S.G. § 2L1.2
punishes him for—not the reinstatement. Accordingly, the
district court correctly enhanced Appellant’s sentence.
AFFIRMED.