United States v. Fidel Luna-Madellaga , 315 F.3d 1224 ( 2003 )

Opinion by Judge RYMER; Dissent by Judge THOMAS.

RYMER, Circuit Judge.

Fidel Luna-Madellaga appeals from the 78-month sentence imposed following his guilty plea conviction for unlawful reentry of a deported alien in violation of 8 U.S.C. § 1326(a). The question presented here is whether Luna-Madellaga is subject to the enhanced penalty provided by § 1326(b)(2) 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). We join the Fifth Circuit in concluding that the enhancement applies to removal that is pursuant to a reinstated order.¹ Having jurisdiction, we affirm.

I

Luna-Madellaga was first removed² from the United States in August 1995 after being convicted on charges of carrying a concealed weapon. He reentered the country illegally, and was removed in January 1996 by reinstatement of the 1995 removal order pursuant to 8 U.S.C. § 1231(a)(5). Section 1231(a)(5) provides:

If the Attorney General finds that an alien has reentered the United States illegally after having been removed or having departed voluntarily, under an order of removal, the prior order of removal is reinstated from its original date and is not subject to being reopened or reviewed, the alien is not eligible and may not apply for any relief under this chapter, and the alien shall be removed under the prior order at any time after the reentry.

8 U.S.C. § 1231(a)(5).

After this, he reentered illegally again and was convicted of assault with a deadly weapon in July 1996. The 1995 removal order was reinstated, and Luna-Madellaga was removed in December 1999. He returned yet again. This time Luna-Madel-laga was indicted for unlawful reentry of a deported alien in violation of 8 U.S.C. § 1326(a), and pled guilty.

The Presentence Investigation Report recommended an enhanced penalty pursuant to U.S.S.G. § 2L1.2(b)(l)(A) because Luna-Madellaga was previously deported following his 1996 conviction for assault with a deadly weapon. U.S.S.G. § 2L1.2(b)(l)(A) implements 8 U.S.C. §§ 1326(a) and (b)(2) by increasing the base offense level for unlawfully entering the United States by 16 levels when the defendant was previously deported after a conviction for a felony that is a crime of violence.

Luna-Madellaga objected to the recommendation on the basis that the 1996 offense occurred after his original removal order to which his subsequent removals related back because they were based on reinstatements of the original order. The district court overruled the objection and sentenced Luna-Madellaga to 78 months imprisonment pursuant to the enhancement.

He timely appeals.

II

Luna-Madellaga argues that the only formal order of removal was the original removal order issued in 1995. In his view, this means that his 1996 conviction cannot qualify for enhanced sentencing because it occurred after his removal rather than before, as § 1326(b)(2) requires. Thus, he maintains, reinstatement of the prior order does not reset the time line for evaluating his 1996 conviction.

Section 1326(a) governs “any alien who (1) has been ... deported, or removed or has departed the United States while an order of exclusion, deportation, or removal is outstanding, and thereafter (2) ... is at any time found in, the United States.” If the “removal was subsequent to a conviction for commission of an aggravated felony,” the alien may be fined and imprisoned up to twenty years. 8 U.S.C. § 1326(b)(2) (1996).

Section 1326 speaks only of “removal.” All that the statute requires is that the alien reenter the United States illegally after having been removed subsequent to an aggravated felony conviction. It plainly turns on the alien’s physical removal — not the order of removal. Similarly, the plain language of § 1231(a)(5) contemplates a second physical removal under a reinstated prior order. As it provides, 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 1999.³ 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)(l)(A).

The Fifth Circuit confronted the same situation, and rejected an argument similar to Luna-Madellaga’s, in United States v. Navar-Perez, 242 F.3d 277 (5th Cir.2001). Like Luna-Madellaga, Nava-Perez claimed that he was not subject to the Guidelines’ enhancement because his second removal pursuant to a reinstated order was effective before he committed the aggravated felony that triggered it. The court of appeals held that § 1231(a)(5) does not treat the alien’s removal as effective from its original date; rather, it unambiguously contemplates a second removal under the reinstated order. Id. at 279. For the same reason, Luna-Madellaga’s reinstatement does not relate back to the time of the prior removal order as he contends. Instead, as his 1999 removal was subsequent to his 1996 conviction for assault with a deadly weapon, the U.S.S.G. § 2L1.2(b)(l)(A) enhancement applies.

Luna-Madellaga submits that if this is so, due process concerns are implicated because an individual ordered formally removed is offered significant procedural rights that are unavailable when a prior formal order is simply reinstated. He points out that we questioned the constitutionality of reinstatement proceedings in Castro-Cortez v. INS, 239 F.3d 1037, 1048-50 (9th Cir.2001), and suggests that we should resolve these concerns in his favor. However, we have since held that reinstatement of a removal order does not violate due process. Alvarenga-Villalobos v. Ashcroft, 271 F.3d 1169, 1174 (9th Cir.2001). As we explained in Alvarengar-Vil-lalobos, an alien who illegally reenters the United States while under an order of removal has already received a full and fair hearing, including judicial review of that hearing, which affords all the process to which he is entitled.

Luna-Madellaga suggests that his situation is different because the government is using events subsequent to the “original date” of his initial removal order to enhance his sentence. This distinction is immaterial, as the enhancement applies because Luna-Madellaga was convicted of a crime of violence before he was removed in 1999.

AFFIRMED.

1 . Another panel reached the same conclusion in a case that was also submitted for decision on December 6, 2002. United States v. Carrillo-Lopez, 313 F.3d 1185 (9th Cir.2002) (per curiam).

2 . The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA”) eliminated the previous legal distinction between deportation, removal, and exclusion, merging all into a broader category entitled ''removal.'' See United States v. Lopez-Gonzalez, 183 F.3d 933, 934-35 (9th Cir.1999).

3 . While the Presentence Investigation Report describes additional instances of removal, only the 1995 removal and 1999 removal pursuant to reinstatement are relevant for our purposes here.