United States v. Virginio Martinez , 870 F.3d 1163 ( 2017 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 17-50026
Plaintiff-Appellee,
D.C. No.
v. 8:16-cr-00122-
DOC-1
VIRGINIO HERNANDEZ MARTINEZ,
AKA Virginia Hernandez, AKA
Chris Martinez, OPINION
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
David O. Carter, District Judge, Presiding
Argued and Submitted August 31, 2017
Pasadena, California
Filed September 15, 2017
Before: William A. Fletcher and Sandra S. Ikuta, Circuit
Judges, and Sarah Evans Barker,* District Judge.
Opinion by Judge Ikuta
*
The Honorable Sarah Evans Barker, United States District Judge for
the Southern District of Indiana, sitting by designation.
2 UNITED STATES V. HERNANDEZ MARTINEZ
SUMMARY**
Criminal Law
The panel vacated a sentence for illegal reentry, in a case
in which the district court applied an enhancement under
U.S.S.G. § 2L1.2(b)(2)(B), which, as amended in 2016,
applies “[i]f, before the defendant was ordered deported or
ordered removed from the United States for the first time, the
defendant sustained . . . a conviction for a felony offense
(other than an illegal reentry offense) for which the sentence
imposed was two years or more.”
The defendant, who sustained a felony conviction before
he was first deported, was sentenced to only one year of
incarceration before his first deportation order; the sentence
was increased to three years of incarceration when his
probation was revoked after he returned to the United States.
The panel held that when viewed in its historical context, the
amended § 2L1.2(b)(2)(B) is best read as carrying forward
the Sentencing Commission’s prior, unambiguous conclusion
that a qualifying sentence must be imposed before the
defendant’s first order of deportation or removal. The panel
concluded that because the defendant’s qualifying prior
felony conviction did not incur a sentence of two years or
more until after he had been deported for the first time, he did
not qualify for an enhancement under § 2L1.2(b)(2)(B)
(2016). The panel remanded for resentencing.
**
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. HERNANDEZ MARTINEZ 3
COUNSEL
James H. Locklin (argued), Deputy Federal Public Defender;
Hilary Potashner, Federal Public Defender; Office of the
Federal Public Defender, Los Angeles, California; for
Defendant-Appellant.
Joseph T. McNally (argued), Assistant United States
Attorney; Lawrence S. Middleton, Chief, Criminal Division;
Sandra R. Brown, Acting United States Attorney; United
States Attorney’s Office, Santa Ana, California; for Plaintiff-
Appellee.
OPINION
IKUTA, Circuit Judge:
Virginio Hernandez Martinez pleaded guilty to illegal
reentry in violation of 8 U.S.C. § 1326. At sentencing, the
district court applied an eight-level enhancement under
§ 2L1.2(b)(2)(B) of the 2016 United States Sentencing
Guidelines (“U.S.S.G.”).1 This enhancement is applicable
“[i]f, before the defendant was ordered deported or ordered
removed from the United States for the first time, the
defendant sustained . . . a conviction for a felony offense
(other than an illegal reentry offense) for which the sentence
imposed was two years or more.” U.S.S.G. § 2L1.2(b)(2)(B)
(2016). Hernandez Martinez argues that the district court
erred in applying this enhancement. Although Hernandez
1
The district court sentenced Hernandez Martinez in January 2017,
so the 2016 Guidelines apply. See Johnson v. Gomez, 92 F.3d 964, 968
(9th Cir. 1996).
4 UNITED STATES V. HERNANDEZ MARTINEZ
Martinez sustained a felony conviction before he was first
ordered deported, he was sentenced to only one year of
incarceration before his first deportation order; the sentence
was increased to three years of incarceration after he returned
to the United States. We conclude that Hernandez Martinez’s
conviction did not qualify for the eight-level enhancement
under § 2L1.2(b)(2)(B), and we therefore vacate the sentence
and remand for resentencing.
I
Virginio Hernandez Martinez is a native and citizen of
Mexico. In 2003, California authorities arrested and charged
him with felony lewd acts with a child. He pleaded guilty,
and the state court sentenced him to five years of probation
and 365 days in jail.
In June 2004, Hernandez Martinez was deported to
Mexico for the first time. The state court revoked his
probation the following month when Hernandez Martinez
failed to report to his probation officer. He returned to the
United States without authorization in May 2005, and
California sentenced him to three years of incarceration for
the revoked probation term in March 2006.
After serving the state sentence, Hernandez Martinez
pleaded guilty to illegal reentry in violation of 8 U.S.C.
§ 1326 and was sentenced to a year and a day in custody. The
government deported him again at the end of that sentence,
but he again returned to the United States without
authorization in March 2014. Approximately two years later,
California charged Hernandez Martinez with a misdemeanor
drug offense and a bicycle equipment infraction; he pleaded
guilty and was sentenced to four days in jail.
UNITED STATES V. HERNANDEZ MARTINEZ 5
After completing his 2016 state sentence, Hernandez
Martinez was again arrested and charged with felony illegal
reentry under § 1326, to which he pleaded guilty. At the
sentencing hearing for the illegal reentry offense, the district
court used the applicable 2016 Guidelines to calculate a base
offense level of eight. See U.S.S.G. § 2L1.2(a) (2016). The
district court also applied two specific offense characteristic
enhancements. First, it imposed a four-level enhancement
because Hernandez Martinez had previously sustained a
felony illegal reentry conviction. See id. § 2L1.2(b)(1)(A).
The district court then imposed an eight-level enhancement
under § 2L1.2(b)(2)(B), ruling that Hernandez Martinez’s
California conviction for felony lewd acts with a child was “a
conviction for a felony offense (other than an illegal reentry
offense)” imposed “before the defendant was ordered
deported or ordered removed from the United States for the
first time” and “for which the sentence imposed was two
years or more.” Id. § 2L1.2(b)(2)(B). Hernandez Martinez
objected to this eight-level enhancement both in writing and
at the sentencing hearing. In his view, the California
conviction did not trigger the enhancement because he had
been sentenced to only a year of prison for felony lewd acts
with a child before his first deportation order in 2004; the
remainder of the sentence for that offense was imposed in
March 2006, after he returned to the United States.
Notwithstanding this objection, the district court applied
the eight-level enhancement, resulting in an adjusted offense
level of 20. The district court gave Hernandez Martinez a
three-level reduction for acceptance of responsibility and
reduced Hernandez Martinez’s criminal history to Category
I. The resulting advisory sentencing range was 24 to 30
months, see id. ch. 5, pt. A, and the district court imposed a
below-Guidelines 18-month sentence.
6 UNITED STATES V. HERNANDEZ MARTINEZ
Hernandez Martinez filed a timely appeal challenging the
district court’s interpretation of § 2L1.2(b)(2)(B). We have
jurisdiction under 18 U.S.C. § 3742, and our review of the
district court’s interpretation of the sentencing guidelines is
de novo. United States v. Lee, 821 F.3d 1124, 1126 (9th Cir.
2016).
II
“[A] district court should begin all sentencing
proceedings by correctly calculating the applicable
Guidelines range.” Gall v. United States, 552 U.S. 38, 49
(2007). “Although the Sentencing Guidelines are merely
advisory,” United States v. Joey, 845 F.3d 1291, 1295 (9th
Cir. 2017), “[a] mistake in calculating the recommended
Guidelines sentencing range is a significant procedural error
that requires us to remand for resentencing,” United States v.
Munoz-Camarena, 631 F.3d 1028, 1030 (9th Cir. 2011).
We interpret the Sentencing Guidelines using the ordinary
tools of statutory interpretation. See United States v. Cruz-
Gramajo, 570 F.3d 1162, 1167 (9th Cir. 2009). “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.” Joey,
845 F.3d at 1297 n.8 (internal quotation marks omitted). We
consider not only a guideline’s text, but also the
Commission’s commentary interpreting or explaining the
text, which “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). We may also look to the
provision’s history and purpose, Abramski v. United States,
134 S. Ct. 2259, 2267 (2014), such as by consulting “the
UNITED STATES V. HERNANDEZ MARTINEZ 7
Commission’s statements of reason” for a particular
amendment, United States v. Ornelas, 825 F.3d 548, 554 (9th
Cir. 2016).
A
Section 2L1.2(b)(2)(B) of the 2016 Guidelines Manual
provides:
(b) Specific Offense Characteristics . . .
(2) (Apply the Greatest) If, before the
defendant was ordered deported or
ordered removed from the United States
for the first time, the defendant
sustained— . . .
(B) 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[.]
U.S.S.G. § 2L1.2(b)(2)(B) (2016) (emphasis added). As
defined in the application notes, the term “sentence imposed”
has the same meaning as “sentence of imprisonment” in
Chapter 4, id. § 2L1.2 cmt. n.2, which is “a sentence of
incarceration and refers to the maximum sentence imposed,”
id. § 4A1.2(b)(1). The application notes for § 2L1.2 further
provide that “[t]he length of the sentence imposed includes
any term of imprisonment given upon revocation of
probation, parole, or supervised release.” Id. § 2L1.2 cmt.
n.2.
8 UNITED STATES V. HERNANDEZ MARTINEZ
The question presented here is whether the phrase
“sentenced imposed” includes terms of imprisonment that
were imposed after the defendant’s first deportation order
when assessing the defendant’s eligibility for the
§ 2L1.2(b)(2)(B) enhancement. On that question,
§ 2L1.2(b)(2)(B) is “susceptible to more than one reasonable
interpretation.” See Arizona v. Tohono O’odham Nation,
818 F.3d 549, 556 (9th Cir. 2016). Hernandez Martinez
argues that § 2L1.2(b)(2)(B) applies only to a defendant who
has sustained a conviction and received a two-year sentence
before the defendant’s first order of deportation or removal.
The government, by contrast, argues that the enhancement
applies to a defendant regardless of when the qualifying
sentence was imposed because the language imposing the
temporal limitation (“before the defendant was ordered
deported . . . for the first time”) addresses only when the
conviction is sustained, not when the sentence is imposed.
Cf. United States v. Nader, 542 F.3d 713, 717 (9th Cir. 2008)
(applying the presumption that Congress places modifying
language as close as possible to the word modified).
Because the text of § 2L1.2(b)(2)(B), standing alone, is
susceptible of either Hernandez Martinez’s or the
government’s interpretation, we must consider the provision’s
language in light of its history and purpose.
B
We begin by considering § 2L1.2(b)(2)(B) in its historical
context. Courts have faced the same ambiguity confronting
us today in a predecessor to § 2L1.2(b)(2). Before 2012, this
issue divided the courts of appeals. In relevant part, the pre-
2012 version of § 2L1.2(b) provided:
UNITED STATES V. HERNANDEZ MARTINEZ 9
(b) Specific Offense Characteristic
(1) Apply the Greatest:
If the defendant previously was deported,
or unlawfully remained in the United
States, after—
(A) a conviction for a felony that is
(i) a drug trafficking offense for which
the sentence imposed exceeded
13 months . . . , increase by 16 levels
if the conviction receives criminal
history points under Chapter Four or
by 12 levels if the conviction does not
receive criminal history points[.]
U.S.S.G. § 2L1.2(b) (2011) (emphasis added). In interpreting
this language, courts struggled with the question whether “the
sentence imposed” for the specified offense must have been
imposed before the defendant was deported, or whether some
portion of the sentence could be imposed after the
deportation, due to revocation of probation or for some other
reason. Although we did not have occasion to address this
question, four courts of appeals held that a qualifying
sentence must be imposed before deportation, see United
States v. Rosales-Garcia, 667 F.3d 1348, 1351 (10th Cir.
2012); United States v. Lopez, 634 F.3d 948, 950 (7th Cir.
2011); United States v. Bustillos-Pena, 612 F.3d 863, 868–69
(5th Cir. 2010); United States v. Guzman-Bera, 216 F.3d
1019, 1021 (11th Cir. 2000) (per curiam), while only one held
that a qualifying sentence could be imposed at any time so
long as the defendant sustained the conviction before
10 UNITED STATES V. HERNANDEZ MARTINEZ
deportation, see United States v. Compres-Paulino, 393 F.3d
116, 117–19 (2d Cir. 2004) (per curiam).
In 2012, the Sentencing Commission resolved the circuit
split by adopting the majority approach. To implement this
decision, the Commission amended § 2L1.2’s commentary to
state that “[t]he length of the sentence imposed includes any
term of imprisonment given upon revocation of probation,
parole, or supervised release, but only if the revocation
occurred before the defendant was deported or unlawfully
remained in the United States.” U.S.S.G. § 2L1.2 cmt.
n.1(B)(vii) (2012) (emphasis added). The Commission
explained that “in some cases revocation proceedings
commonly occur before the offender is sentenced on the
illegal reentry offense, while in other cases the revocation
occurs after the federal sentencing,” and disparities in
sentences could occur “based on the ‘happenstance’ of
whether that revocation occurred before or after the
prosecution for the illegal reentry offense.” U.S.S.G. app. C
amend. 764 at 12 (2016 supp.) (citing and quoting Rosales-
Garcia, 667 F.3d at 1354). Because the enhancement is
intended to reflect the seriousness of the offense conduct, as
indicated by the length of the sentence imposed, the
Commission believed it could achieve “more consistent
application of the enhancements . . . and promote uniformity
in sentencing” by “assessing the seriousness of the prior
crime based on the sentence imposed before deportation.” Id.The Commission further amended § 2L1.2 in 2016. See
id. amend. 802 at 147–53. First, the Commission amended
§ 2L1.2(b)(2)(B) to its current form: “If, before the defendant
was ordered deported or ordered removed from the United
States for the first time, the defendant sustained . . . a
conviction for a felony offense (other than an illegal reentry
UNITED STATES V. HERNANDEZ MARTINEZ 11
offense) for which the sentence imposed was two years or
more . . . .” Id. at 148. Second, the Commission added a new
subsection, § 2L1.2(b)(3), which provides enhancements for
defendants who “engage[] in criminal conduct” after their
first order of deportation or removal, with enhancements
varying depending on the severity of the “sentenced
imposed.” Id. at 148–49, 157. Third, the Commission
removed the language it had previously added to § 2L1.2’s
commentary to resolve the circuit split, i.e., the language
stating that the length of the sentence imposed includes any
term of imprisonment given upon revocation of probation,
parole, or supervised release, “but only if the revocation
occurred before the defendant was deported or unlawfully
remained in the United States.” Compare id. at 150 (removed
language), with id. at 153 (enacted language). In explaining
the reasons for the amendments to § 2L1.2, the Commission
did not mention its 2012 policy decision resolving the circuit
split, nor suggest it was now taking a different approach. See
id. at 155–59.
C
Our recitation of this history shows that the Commission
originally resolved an interpretive ambiguity by adopting the
majority approach that a “sentence imposed” for purposes of
§ 2L1.2(b) excluded a revocation sentence imposed after
deportation. But the four years of clarity on this issue ended
in 2016 when the Commission (1) revised § 2L1.2(b)(2)(B)
in a manner that introduced the same ambiguity into the text
while (2) removing the 2012 language that had resolved the
prior circuit split. The question before us is whether we
should infer from the Commission’s 2016 amendment that it
intended to reverse the policy judgment it made in 2012.
Taking into account all the relevant revisions in 2016, as well
12 UNITED STATES V. HERNANDEZ MARTINEZ
as the historical context, we conclude that the Commission
did not reverse course in 2016, but maintained its 2012 policy
judgment resolving the circuit split.
There are several reasons for this conclusion. The first is
textual: The Commission signaled its intent to stay the
course by amending § 2L1.2(b)(2) to include language similar
to the 2012 language added to the commentary. In 2012, the
Commission stated that a term of imprisonment following
revocation of probation, parole, or supervised release is
included in the sentence imposed “if the revocation occurred
before the defendant was deported or unlawfully remained in
the United States.” U.S.S.G. § 2L1.2 cmt. n.1(B)(vii) (2012).
The current language establishing the pertinent
timeframe—“[i]f, before the defendant was ordered deported
or ordered removed from the United States for the first time,”
id. § 2L1.2(b)(2) (2016)—closely matches. This suggests
that the Commission intended to maintain its 2012 policy
judgment, but decided to implement that judgment through
§ 2L1.2(b)(2)’s text rather than through the commentary.
Second, the Commission’s removal of the 2012 language
was necessary for reasons unrelated to a change in policy,
namely, the addition of § 2L1.2(b)(3), which provides
enhancements for convictions that occur after the first
deportation or removal order. Because the 2016 Guidelines
(unlike prior editions) specially account for a defendant’s
convictions and sentences resulting from criminal conduct
after a first order of deportation, it would no longer make
sense to allow consideration of sentences imposed for
revocation of probation, parole, or supervised release “only
if the revocation occurred before the defendant was deported
or unlawfully remained in the United States.” U.S.S.G.
§ 2L1.2 cmt. n.1(B)(vii) (2012) (emphasis added). The need
UNITED STATES V. HERNANDEZ MARTINEZ 13
to remove the 2012 language from the Commentary to avoid
inconsistency with § 2L1.2(b)(3) supports the inference that
the Commission shifted the language expressing its 2012
policy judgment to the text of § 2L1.2(b)(2).
Third, other than removing the 2012 language from the
commentary (which was required by the addition of
§ 2L1.2(b)(3)), the Commission did not suggest that it
intended to adopt the minority position that a “sentence
imposed” for purposes of § 2L1.2(b)(2) includes revocation
sentences imposed after a first order of deportation. Nor did
the Commission suggest it had changed its conclusion from
2012 that courts should assess only those sentences imposed
before deportation in order to avoid unwarranted disparities
in applying the enhancement. As the Fifth Circuit explained
when endorsing the same interpretation we adopt today, the
“disappearing language” from the commentary “does not
compel the conclusion that we are witnessing a policy shift.”
United States v. Franco-Galvan, 864 F.3d 338, 343 (5th Cir.
2017) (per curiam). “When the Commission resolved the
circuit split in 2012, it plainly announced its intention to do
so,” and “[i]f the Commission has now thought better of its
previous decision, we would expect to see a comparable
announcement.” Id. We do not suggest that an amendment
has no effect unless the Commission explains the intended
change in its statement of reasons for amendment. But
where, as here, the Commission previously reached a
reasoned judgment on a divisive issue, and the basis for that
judgment has not changed, we will not infer a dramatic shift
in policy where the Commission removes language
implementing that judgment without explanation but also
adds new language that readily supports the status quo. A
contrary inference would improperly afford “decisive
significance” to the “unexplained disappearance” of language
14 UNITED STATES V. HERNANDEZ MARTINEZ
that we conclude was likely removed to achieve goals other
than a change in policy. Mead Corp. v. Tilley, 490 U.S. 714,
723 (1989).
We reject the government’s argument that the current
commentary requires us to reach a contrary result because the
definition of “sentence imposed” includes “any term of
imprisonment given upon revocation of probation, parole, or
supervised release.” U.S.S.G. § 2L1.2 cmt. n.2 (2016)
(emphasis added). Although the reference to “any term of
imprisonment” is expansive, this language does not resolve
the temporal issue: whether the definition refers to any term
of imprisonment imposed before the first deportation order,
or may include any term imposed before or after the first
deportation order. Indeed, courts rejected this same argument
before the Commission resolved the pre-2012 circuit split.
See Rosales-Garcia, 667 F.3d at 1352 (“[T]he commentary
simply does not address the temporal constraint at the crux of
this appeal.”); Lopez, 634 F.3d at 952 (“[T]he application
note and the argument do not address the issue of timing
under section 2L1.2(b)(1).”). The Commission had no reason
to suspect that returning this portion of the commentary to its
pre-2012 form would result in a different interpretation from
what courts had previously given to it.
We conclude that when viewed in its historical context,
the amended § 2L1.2(b)(2)(B) is best read as carrying
forward the Commission’s prior, unambiguous conclusion
that a qualifying sentence must be imposed before the
defendant’s first order of deportation or removal.2
2
In arguing against this conclusion, the government asks us to
consider an interpretation published in the 2016 Primer on the
Immigration Guidelines. See U.S. Sentencing Commission, Office of
UNITED STATES V. HERNANDEZ MARTINEZ 15
III
In this case, Hernandez Martinez’s California conviction
for lewd conduct with a child did not incur a sentence of two
years or more until 2006, after Hernandez Martinez had been
ordered deported for the first time. Therefore, the conviction
did not qualify Hernandez Martinez for § 2L1.2(b)(2)(B)’s
eight-level enhancement. Because the district court
concluded otherwise when calculating the advisory guidelines
sentencing range, we vacate the sentence and remand for
resentencing. See Munoz-Camarena, 631 F.3d at 1030.
VACATED AND REMANDED.
General Counsel, Primer on the Immigration Guidelines (Nov.
2016), available at https://www.ussc.gov/sites/default/files/pdf/training/
primers/2016_Primer_Immigration.pdf. We decline to do so. The Primer
expressly disavows the authority to “represent the official position of the
Commission,” id. at i, and its unreasoned interpretation lacks persuasive
power. See Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944).