United States v. Jose Madrid-Becerra

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 19-10458
Plaintiff-Appellee,
D.C. No.
v. 2:19-cr-01067-
DJH-1
JOSE YOBANI MADRID-BECERRA,
AKA Jose Jobane Madrid Becerra,
AKA Jose Madrid-Mesena, OPINION
Defendant-Appellant.
Appeal from the United States District Court
for the District of Arizona
Diane J. Humetewa, District Judge, Presiding
Argued and Submitted May 13, 2021
Pasadena, California
Filed October 1, 2021
Before: Jay S. Bybee and Daniel A. Bress, Circuit Judges,
and Kathleen Cardone,* District Judge.
Opinion by Judge Bybee;
Dissent by Judge Cardone
*
The Honorable Kathleen Cardone, United States District Judge for
the Western District of Texas, sitting by designation.
2 UNITED STATES V. MADRID-BECERRA
SUMMARY**
Criminal Law
The panel affirmed a sentence in a case in which the
defendant, who was convicted of illegal re-entry under
8 U.S.C. § 1326(a), argued that the district court erred by
applying U.S.S.G. § 4A1.1(d), which assigns two criminal
history points “if the defendant committed the instant offense
while under any criminal justice sentence, including
probation, parole, supervised release, imprisonment, work
release, or escape status.”
After serving a portion of a 2013 Arizona state sentence
in prison, the defendant was granted early conditional release
under Ariz. Rev. Stat. § 41-1604.14 (repealed Aug. 6, 2016),
known as the “half-term to deport” program. The crux of the
defendant’s argument was that he did not commit his illegal
re-entry offense “while under any criminal justice sentence.”
The panel rejected the defendant’s argument that his early
release did not provide for supervision of, or place
restrictions or conditions on, his subsequent actions. The
panel wrote that there is no question that the Arizona sentence
was imposed and that as a condition of his early release from
prison, Arizona required that the defendant not illegally
reenter the United States. If he did so and was discovered, his
release was to be revoked and he was to be returned to
custody to serve the remainder of his initial sentence. This
condition was mandatory, part and parcel of the terms of his
**
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. MADRID-BECERRA 3
original sentence under Arizona law, and reflects a “custodial
or supervisory component” akin to probation (U.S.S.G.
§ 4A1.1 cmt. n.4).
The panel rejected the defendant’s argument that, at the
time he was discovered in the United States, he was no longer
under a criminal justice sentence because the statute
authorizing revocation of his release had been repealed. The
panel explained that Arizona’s general savings statutes
require that, for aliens like the defendant who were convicted
when § 41-1604.14 was in force, that provision continues to
govern their sentences, and that the Arizona Department of
Corrections maintained the authority to revoke his release
because of his illegal re-entry.
The panel held that even if the district court erred in
assuming that the defendant had received formal notice of the
condition that he not return illegally from the state court
during sentencing, the defendant did not demonstrate that this
alleged error affected his substantial rights. The panel held
that the district court did not clearly err in finding that the
defendant’s early release was in fact revoked, but noted that
neither the Sentencing Guidelines nor its Commentary
requires that any parole or release actually be revoked, or that
an escapee be apprehended, for § 4A1.1(d) to apply.
Dissenting, District Judge Cardone wrote that § 4A1.1(d)
does not apply to a scheme such as Arizona’s half-term to
deportation program under which each day the defendant
spent on his “conditional release” brought him no closer to
the termination of his sentence.
4 UNITED STATES V. MADRID-BECERRA
COUNSEL
Michael L. Burke (argued), Assistant Federal Public
Defender; Jon M. Sands, Federal Public Defender; Office of
the Federal Public Defender, Phoenix, Arizona; for
Defendant-Appellant.
Seth T. Goertz (argued), Assistant United States Attorney;
Krissa M. Lanham, Appellate Division Chief; Michael
Bailey, United States Attorney; United States Attorney’s
Office, Phoenix, California; for Plaintiff-Appellee.
OPINION
BYBEE, Circuit Judge:
Defendant Jose Madrid-Becerra appeals from his sentence
for a conviction of illegal re-entry under 8 U.S.C. § 1326(a).
He argues that the district court erred by applying United
States Sentencing Guidelines (U.S.S.G. or Guidelines)
§ 4A1.1(d) to raise his criminal history score and,
consequently, his Guidelines range. The crux of Madrid-
Becerra’s argument is that he did not commit his illegal re-
entry offense “while under any criminal justice sentence,” as
required by § 4A1.1(d).
Because the district court correctly applied § 4A1.1(d),
we affirm Madrid-Becerra’s sentence.
I. BACKGROUND
In June 2013, Madrid-Becerra was convicted of
solicitation to commit transportation of marijuana for sale
UNITED STATES V. MADRID-BECERRA 5
under Arizona law and sentenced to two and a half years.
After serving a portion of his sentence in prison, he was
granted early conditional release under Ariz. Rev. Stat. § 41-
1604.14 (repealed Aug. 6, 2016), known as the “half-term to
deport” program. That statute permitted the Arizona
Department of Corrections (ADOC) to “release a prisoner to
the custody and control of the United States immigration and
customs enforcement” if ADOC receives an order of
deportation, the prisoner has served at least one-half of the
sentence imposed, and the offense meets certain other
requirements. See Ariz. Rev. Stat. § 41-1604.14(A). It also
provided that “[i]f a prisoner who is released pursuant to this
section returns illegally to the United States, on notification
from any federal or state law enforcement agency that the
prisoner is in custody, [ADOC] shall revoke the prisoner’s
release.” Id. § 41-1604.14(B). Shortly after ADOC released
Madrid-Becerra in 2014 to the custody of the United States
pursuant to § 41-1604.14, he was removed to Mexico.
Madrid-Becerra re-entered the United States without
inspection in June 2016. In December 2017, Madrid-Becerra
was arrested by local Arizona police on assault charges. He
was later convicted of attempted aggravated assault and
sentenced to eighteen months imprisonment. The Maricopa
County Superior Court ordered his sentence to run concurrent
with the remainder of his sentence from his 2013 offense.
In July 2019, Arizona released Madrid-Becerra to U.S.
Immigration and Customs Enforcement (ICE) custody, which
detained him on a felony complaint. He was later indicted for
illegal re-entry and pleaded guilty to the offense. At
sentencing, the Pre-Sentence Report (PSR) prepared by the
United States Probation Office assessed a criminal history
score of eight, two points of which were due to the PSR’s
6 UNITED STATES V. MADRID-BECERRA
conclusion that Madrid-Becerra “committed the instant
offense while under a criminal justice sentence for [his 2013
conviction for] solicitation to commit transportation of
marijuana for sale.” U.S.S.G. § 4A1.1(d). His criminal
history score placed his Guidelines range for custody at 46 to
57 months, though the PSR recommended a downward
departure to 27 months.
Madrid-Becerra objected to the PSR’s assessment of the
“two-level enhancement for committing the instant offense
while under a criminal justice sentence” because Arizona’s
“half-term to deport” program “does not have any custodial
or supervisory component.” He argued that without the extra
two points, his Guidelines range would have been 37 to
46 months. The district court heard argument on this
objection at sentencing but found that the enhancement was
applicable. The court thereafter sentenced Madrid-Becerra to
27-months imprisonment with credit for time served,
followed by three years of supervised release. His projected
release date is August 3, 2021.
II. JURISDICTION AND STANDARD OF REVIEW
We have jurisdiction to review Madrid-Becerra’s sentence
under 28 U.S.C. § 1291. “We review de novo the district
court’s interpretation of the Sentencing Guidelines,”
including the calculation of the criminal history score.
United States v. Gonzalez, 739 F.3d 420, 422 n.1 (9th Cir.
2013) (citing United States v. Lichtenberg, 631 F.3d 1021,
1024 (9th Cir. 2011)). We review “the district court’s
application of the Sentencing Guidelines to the facts of this
case for abuse of discretion, and the district court’s factual
findings for clear error. United States v. Stoterau, 524 F.3d
988, 997 (9th Cir. 2008) (citation omitted).
UNITED STATES V. MADRID-BECERRA 7
III. ANALYSIS
Madrid-Becerra argues that the district court improperly
applied U.S.S.G. § 4A1.1(d) because he was not “under any
criminal justice sentence” when he committed his illegal re-
entry offense. First, Madrid-Becerra argues that his early
release did not provide for supervision of, or place
restrictions or conditions on, his subsequent actions. Second,
he argues that because Arizona repealed its “half-term to
deport” program in 2016, ADOC lacked authority to reinstate
his sentence in 2017. Third, he asserts that the district court
clearly erred in determining that he had notice that his return
to the United States would result in reinstatement of his
sentence and that his sentence was actually reinstated. We
disagree on all counts.
A. Custodial or Supervisory Component
U.S.S.G. § 4A1.1(d) provides that two points should be
added to the defendant’s criminal history score “if the
defendant committed the instant offense while under any
criminal justice sentence, including probation, parole,
supervised release, imprisonment, work release, or escape
status.” The commentary states that “a ‘criminal justice
sentence’ means a sentence countable under § 4A1.2 . . .
having a custodial or supervisory component, although active
supervision is not required for this subsection to apply.”
U.S.S.G. § 4A1.1, cmt. n.4 (emphasis added). The
commentary specifically notes that “a term of unsupervised
probation would be included, but a sentence to pay a fine, by
itself, would not be included.” Id.
Madrid-Becerra asserts that there were no restrictions or
conditions placed on his subsequent actions after his release.
8 UNITED STATES V. MADRID-BECERRA
This is plainly incorrect. Ariz. Rev. Stat. § 41-1604.14(B)
provided that early release “shall” be revoked if the defendant
“returns illegally to the United States” and the ADOC
receives notification from “any federal or state law
enforcement agency” that the defendant is in custody. This
is both a restriction and a condition. The benefit of Arizona’s
early release could only be enjoyed so long as Madrid-
Becerra did not re-enter the United States illegally. If he re-
entered illegally, his early release was subject to revocation
by ADOC, and he would have to serve the remainder of his
sentence. This condition is sufficient to supply the
“supervisory component” required by U.S.S.G. § 4A1.1(d).
See United States v. Franco-Flores, 558 F.3d 978, 981–82
(9th Cir. 2009).
Madrid-Becerra argues that there must be some active
form of supervision to trigger the application of § 4A1.1(d).
The comment to § 4A1.1 is quite clear on this point: “active
supervision is not required for this subsection to apply.”
U.S.S.G. § 4A1.1, cmt. n.4. Our decision in United States v.
Ramirez-Sanchez, 338 F.3d 977 (9th Cir. 2003), is on point.
In that case, upon his release from custody for having
committed an unspecified crime, Ramirez-Sanchez was
deported without having gone into active probation
supervision. Id. at 979. Like Madrid-Becerra, Ramirez-
Sanchez argued that U.S.S.G. § 4A1.1(d) did not apply to him
because he was not supervised in any way following his
deportation. Id. We explained that “a term of supervised
release remains intact after a defendant’s deportation.” Id.
at 980. We noted that Congress, in a section entitled
“Inclusion of a term of supervised release after
imprisonment,” has provided:
UNITED STATES V. MADRID-BECERRA 9
If an alien defendant is subject to deportation,
the court may provide, as a condition of
supervised release, that he be deported and
remain outside the United States, and may
order that he be delivered to a duly authorized
immigration official for such deportation.
18 U.S.C. § 3583(d). We thus concluded that despite the lack
of active supervision, “deportation does not terminate
supervised release . . . [or] probation.” Ramirez-Sanchez,
338 F.3d at 981; see also United States v. Gonzalez, 739 F.3d
420, 423–24 (9th Cir. 2013) (holding that deportation did not
terminate the defendant’s parole and that unsupervised parole
was sufficient for § 4A1.1(d)); United States v. McCrudden,
894 F.2d 338, 339 (9th Cir. 1990) (per curiam) (“Even if
unsupervised, probation can be revoked and replaced by a
sentence of greater punishment if further offenses are
committed during the probationary period. The non-
supervisory status of a sentence of probation does not exempt
it from section 4A1.1(d).”).
Madrid-Becerra argues that nothing “in the record
suggests that . . . he was under any form of supervision by
any probation officer or ADOC employee.” But even
assuming Madrid-Becerra was not subject to court-ordered
conditions of release, that is not the issue. Rather, the
question is whether Madrid-Becerra was subject to any
condition that related to a “custodial or supervisory
component” of his sentence. He was. Madrid-Becerra was
released subject to the statutory condition that he not illegally
re-enter the United States. Otherwise his release would be
subject to revocation, and he would have to serve the
remainder of his sentence. It was a clear rule, with a clear
consequence related to a “custodial or supervisory”
10 UNITED STATES V. MADRID-BECERRA
component, and he was subject to ADOC supervision on the
basis of this condition.
Madrid-Becerra also contends that ADOC could not be
supervising him because, under § 14-1604.14, revocation of
his release was triggered by notification from “some other
law enforcement agency.” But this is also immaterial. That
one law enforcement agency would learn about information
from another agency is neither surprising nor novel. It is
quite common for parole or probation to be revoked based on
a notification from another law enforcement agency. An
offender out on federal supervised release may be subject to
revocation because a state law enforcement agency has
notified the federal probation officer of a violation. A state
or federal law enforcement agency notifying the ADOC of a
violation is no different. What matters is that ADOC retained
the ability to “supervise” Madrid-Becerra’s behavior, even if
it did not do so directly.
United States v. Kipp, 10 F.3d 1463 (9th Cir. 1993), and
United States v. Gonzalez Vazquez, 719 F.3d 1086 (9th Cir.
2013), do not govern here. In Kipp, the defendant had a
suspended sentence for a traffic offense. We first found that
“[b]y definition, a suspended sentence has no ‘custodial
component.’” 10 F.3d at 1467. In Kipp’s case, “[s]ince [a]
sentence has not been imposed, the defendant cannot be
‘under’ a sentence” for the purposes of § 4A1.1(d). Id.
(footnote omitted). Thus, unless a suspended sentence had
“an accompanying term of probation,” it is “not a ‘criminal
justice sentence,’ as that term is used in § 4A1.1(d).” Id.; see
also Franco-Flores, 558 F.3d at 982 (recognizing that in
Kipp, there was no supervisory component because “no
conditions whatsoever were imposed on the defendant,
including any probation-like components.”).
UNITED STATES V. MADRID-BECERRA 11
Gonzalez Vazquez is also inapposite. That case was
concerned not with the relevant section of the Guidelines at
issue here, but with § 4A1.2(c)(1)(A), which makes certain
misdemeanor offenses “countable” for purposes of the
criminal history computation if they were accompanied by a
term of “probation.” See 719 F.3d at 1089 & n.8. In contrast,
“criminal justice sentence” in § 4A1.1(d) includes, but is not
limited to, probation. See U.S.S.G. § 4A1.1 cmt. n.4 (noting
that “any criminal justice sentence” “include[s] probation,
parole, supervised release, imprisonment, work release, or
escape status”); see also Franco-Flores, 558 F.3d at 982
(“[A] suspended sentence with a supervisory or custodial
component can constitute a ‘criminal justice sentence’ under
section 4A1.1(d).”). Moreover, as in Kipp, it was unclear
from the state statute “whether a court that suspends all or
part of a sentence merely may, or must, direct any supervision
of misdemeanants.” Id. at 1092. We concluded that in the
absence of any express imposition of probation, “the better
inference is that Gonzalez Vazquez was not sentenced to
probation,” and his suspended sentence therefore did not
count for the purposes of his Guidelines calculation. Id.
at 1092.
Here, there is no question that Madrid-Becerra’s sentence
was imposed and that as a condition of his early release from
prison, Arizona required that Madrid-Becerra not illegally
reenter the United States. If he did so and was discovered, his
release was to be revoked and he was to be returned to
custody to serve the remainder of his initial sentence. This
condition was mandatory, part and parcel of the terms of his
original sentence under Arizona law, and reflects a “custodial
or supervisory component” akin to probation. U.S.S.G.
§ 4A1.1 cmt. n.4. We hold that Madrid-Becerra was “under
12 UNITED STATES V. MADRID-BECERRA
any criminal justice sentence” when he illegally reentered the
United States within the meaning of U.S.S.G. § 4A1.1(d).
B. Repeal of the Arizona Statute
Madrid-Becerra also argues that, at the time he was
discovered in the United States, he was no longer under a
criminal justice sentence because the statute authorizing
revocation of his release had been repealed. In 2016, the
Arizona legislature repealed the half-term to deportation
program. See 2016 Ariz. Sess. Laws, ch. 89, § 1. Madrid-
Becerra argues that absent a savings clause or general saving
statute, the repeal “divests the right to proceed under the
statute.” But Arizona does have a savings statute. In fact, it
has two of them: Ariz. Rev. Stat. §§ 1-246, 1-247.1 These
statutes provide that “the repeal or alteration of any statute
shall not have the effect of exempting from punishment a
person who has offended against the altered or repealed law.”
1
A.R.S. § 1-247 provides:
When by the provisions of a repealing statute a new
penalty is substituted for an offense punishable under
the law repealed, such repealing statute shall not
exempt from punishment a person who has offended
against the repealed law while it was in force, but in
such case the rule prescribed in § 1-246 shall govern.
In turn, A.R.S. § 1-246 provides:
When the penalty for an offense is prescribed by one
law and altered by a subsequent law, the penalty of
such second law shall not be inflicted for a breach of
the law committed before the second took effect, but
the offender shall be punished under the law in force
when the offense was committed.
UNITED STATES V. MADRID-BECERRA 13
State v. Vineyard, 392 P.2d 30, 33 (Ariz. 1964). They apply
to laws that “alter the penalty which was attached to any
offense, [] create a new penalty, []or change the sentence
imposed.” Tyree v. Moran, 550 P.2d 1076, 1078 (Ariz.
1976). If the penalty is altered by a subsequent law, these
general savings provisions require that “the offender shall be
punished under the law in force when the offense was
committed.” Ariz. Rev. Stat. § 1-246. “Absent express
language, Arizona statutes are not retroactive.” State v. Stine,
906 P.2d 58, 59 (Ariz. Ct. App. 1995).
Here, applying the repeal to preclude ADOC from
revoking Madrid-Becerra’s sentence would effectively
“change the sentence imposed,” Tyree, 550 P.2d at 1078,
because Madrid-Becerra would not be subject to the full term
of his sentence. And, nothing in the law repealing § 41-
1604.14 expressly made it retroactive. Thus, Arizona’s
general savings statutes require that, for aliens like Madrid-
Becerra who were convicted when Ariz. Rev. Stat. § 41-
1604.14 was in force, that provision continues to govern their
sentences. We conclude that ADOC maintained the authority
to revoke Madrid-Becerra’s release in 2016 and 2017 because
of his illegal re-entry.
C. The District Court Did Not Factually Err
Madrid-Becerra alleges that the district court clearly erred
when it found that he was under a criminal justice sentence at
the time he illegally re-entered the United States. First, he
argues that the district court erred by determining that he had
notice of the condition that he not return illegally. Second, he
argues that the district court erred in determining that he was
returned to ADOC custody to serve the remainder of his 2013
sentence.
14 UNITED STATES V. MADRID-BECERRA
The district court did not clearly err in either factual
determination and there is no plain error of law.2 First, even
if the district court erred in assuming that Madrid-Becerra had
received formal notice from the state court during sentencing,
Madrid-Becerra has not demonstrated that this alleged error
“affected [his] substantial rights.” Christensen, 732 F.3d
at 1102. As the district court noted, § 41-1604.14(B) is itself
sufficient to provide notice of the condition on Madrid-
Becerra’s release. Whether or not Madrid-Becerra received
formal notice from the state court is thus irrelevant to whether
he was “under any criminal justice sentence.” Because the
alleged error would not have affected his criminal history
score or the applicable guidelines range, Madrid-Becerra has
not demonstrated any prejudice affecting his substantial
rights.
Second, the district court did not clearly err in finding that
Madrid-Becerra’s early release was in fact revoked. As a
preliminary matter, Madrid-Becerra points to no authority
indicating that the § 4A1.1(d) enhancement applies only if a
defendant’s early release was actually revoked. The
Guidelines require simply that a defendant be “under any
criminal justice sentence, including probation, parole,
supervised release, imprisonment, work release, or escape
status.” U.S.S.G. § 4A1.1 cmt. n.4. Neither the Guidelines
nor its Commentary requires that any parole or release
actually be revoked, or that an escapee be apprehended.
2
Because Madrid-Becerra did not raise these alleged factual errors
until appeal, we review for plain error. See United States v. Rangel,
697 F.3d 795, 800 (9th Cir. 2012). Madrid-Becerra “bears the burden of
showing a reasonable probability that he would have received a different
sentence absent the error.” United States v. Christensen, 732 F.3d 1094,
1102 (9th Cir. 2013).
UNITED STATES V. MADRID-BECERRA 15
Moreover, under Federal Rule of Criminal Procedure
32(i)(3)(A), the district court “may accept any undisputed
portion of the [PSR] as a finding of fact.” Here, the PSR
stated that Madrid-Becerra was “[r]eturned to custody to
serve the remainder of the conditional release.” Madrid-
Becerra concedes that he did not dispute this assertion before
the district court. Not only did he not dispute the statement,
but in his objection in the addendum to the PSR, Madrid-
Becerra admitted that “upon being detected, he was returned
to the [ADOC] to serve the remainder of his term.”
Moreover, we may take judicial notice that the Superior
Court’s sentencing order for Madrid-Becerra’s 2017
conviction indicates that his 2017 sentence would run
concurrent with the remainder of his 2013 sentence.3 Thus,
because Madrid-Becerra did not challenge the PSR’s
statement that he was returned to custody to serve the
remainder of his 2013 sentence and there is additional
documentation supporting that conclusion—including his
own admission—“the district court correctly accepted the
report’s findings.” United States v. George, 949 F.3d 1181,
1187 (9th Cir.), cert. denied, 141 S. Ct. 605 (2020).
IV. CONCLUSION
The judgment of the district court is AFFIRMED.
3
We GRANT the Government’s unopposed motion for judicial
notice of this document.
16 UNITED STATES V. MADRID-BECERRA
CARDONE, District Judge, dissenting:
This case turns on whether a prisoner who has been
released from serving his two-and-a-half-year sentence
pursuant to Arizona’s half-term to deportation program can
nevertheless remain “under [a] criminal justice sentence”
indefinitely. Because the Guidelines suggest the answer is
“no,” I respectfully dissent.
This Court has considered § 4A1.1(d)’s application to
suspended and deferred sentences, United States v. Kipp,
10 F.3d 1463 (9th Cir. 1993); United States v. Franco-Flores,
558 F.3d 978 (9th Cir. 2009), unsupervised probation with
immediate deportation, United States v. Ramirez-Sanchez,
338 F.3d 977 (9th Cir. 2003), and nonrevocable parole,
United States v. Gonzalez, 739 F.3d 420 (9th Cir. 2013),
among other schemes. But it has never considered a “half-
term to deportation program” like Arizona’s, in which a
prisoner begins serving a fixed custodial sentence that a
department of corrections suspends for a “potential lifetime
duration.” As the Government conceded at sentencing, the
“half-term release program doesn’t fall neatly into”
§ 4A1.1(d). Based on the plain language, structure, and
purposes of the Guidelines, I would hold that Appellant was
not “under any criminal justice sentence” at the time of his
federal offense.
Section 4A1.1(d) applies to a defendant “under any
criminal justice sentence, including . . . parole.” The PSR and
the majority refer to Arizona’s program as “early conditional
release,” which is a form of parole. See CONDITIONAL
RELEASE, Black’s Law Dictionary (11th ed. 2019). But the
two are materially distinguishable. Compare Kipp, 10 F.3d
at 1467 (holding that defendant’s suspended sentence was not
UNITED STATES V. MADRID-BECERRA 17
a “criminal justice sentence” because it was distinguishable
from the punishments listed in § 4A1.1(d)), with Gonzalez,
739 F.3d at 424 (holding that § 4A1.1(d) applied to
nonrevocable parole because it was not distinguishable from
unsupervised probation).
Where, as here, “a criminal defendant has been committed
to the custody of the prison authorities, any period served . . .
on parole or conditional release is deemed service of [their]
term of confinement, and such inmate is entitled to credit on
[their] prison sentence for [that] period.” 24 C.J.S. Criminal
Procedure and Rights of Accused § 2394 (August 2021
Update). As the Supreme Court has repeatedly observed,
“[t]he essence of parole is release from prison . . . on the
condition that the prisoner abide by certain rules during the
balance of the sentence.” Samson v. California, 547 U.S.
843, 850 (2006) (emphasis added) (quoting Morrissey v.
Brewer, 408 U.S. 471, 477 (1972)). Rather than indefinitely
suspending the prisoner’s term of incarceration, as was done
here, a “paroled prisoner continues to serve his or her
sentence while on parole until . . . the maximum term of the
sentence expires.” 59 Am. Jur. 2d Pardon and Parole § 117
(August 2021 Update). And that makes sense since a parolee
“remain[s] in the legal custody and under the control of
prison authorities,” making parole a “punishment” that “is in
legal effect imprisonment.” Id. By necessity, then, a
parolee’s sentence continues to run.
The majority maintains that Appellant somehow remained
subject to ADOC’s legal custody or supervisory control like
any other parolee. But if that were true, then Appellant
would have remained under a “punishment” that is “in legal
effect imprisonment,” see id., he would have continued to
serve his sentence, and that sentence would have expired
18 UNITED STATES V. MADRID-BECERRA
prior to his illegal reentry. That did not happen here. Instead,
his custodial sentence stopped running entirely and his
service was suspended indefinitely. That is neither parole nor
conditional release.
Indeed, Arizona’s scheme is distinguishable from every
“criminal justice sentence” contemplated by § 4A1.1(d).
Section 4A1.1(d) provides that a “criminal justice sentence”
includes “probation, parole, supervised release,
imprisonment, work release, [and] escape status.” Under
each of those schemes, a defendant continues to serve their
sentence or remains obligated to do so. And for all but
“escape status” (discussed below), punishment lasts for a
fixed period or range of time, allowing for continued service
until the sentence expires.1 Each day on probation or
supervised release, for example, is one day closer to absolute
discharge. But not under Arizona’s program. Instead, each
day Appellant spent on his “conditional release” brought him
no closer to the termination of his sentence. There is no
1
For example, Black’s Law defines “probation” as “usually on
condition . . . over a specified period of time.” See PROBATION, Black’s
Law Dictionary (11th ed. 2019) (emphasis added). And the Second
Circuit has observed that the “practice of imposing indeterminate
probationary terms is relatively unique,” making it unsurprising that “the
Guidelines do not address this situation.” United States v. Rich, 900 F.2d
582, 584–85 (2d Cir. 1990) (discussing § 4A1.2(c)(1)). Similarly,
“supervised release” is defined as “1. A period of probation that is
imposed in addition to a sentence of imprisonment rather than as a
substitute for part or all of that sentence.” SUPERVISED RELEASE,
Black’s Law Dictionary (11th ed. 2019) (emphasis added).
UNITED STATES V. MADRID-BECERRA 19
indication in the Guidelines or case law that § 4A1.1(d)
applies to such a scheme.2
That conclusion is bolstered by § 4A1.1(d)’s requirement
that the defendant have been “under” a criminal justice
sentence. Although the Guidelines do not define that term,
this Court and other courts have long suggested that to be
“under sentence” for the purposes of § 4A1.1(d), a defendant
“need be serving [that] sentence,” United States v. Wright,
891 F.2d 209, 211 (9th Cir. 1989), or “under a requirement to
serve [that] sentence,” United States v. Damon, 127 F.3d 139,
147 (1st Cir. 1997), at the time of their federal offense.3 And
that is consistent with common usage. See United States v.
Leal-Felix, 665 F.3d 1037, 1041 (9th Cir. 2011). A prisoner
“under . . . supervised release” or “under . . . probation” is
generally serving their sentence of supervised release or
probation, just like a defendant “under . . . parole” is
2
Indeed, the Commentary explains that “a term of unsupervised
probation would be included; but a sentence to pay a fine” would not.
U.S.S.G. § 4A1.1(d), cmt. n.4 (emphasis added). A “term,” of course,
means “[a] fixed period of time.” TERM, Black’s Law Dictionary (11th
ed. 2019). By contrast, a sentence to pay a fine involves no similar
temporal quality—there is no term for a defendant to serve.
3
See also United States v. Alba-Flores, 577 F.3d 1104, 1111 (9th Cir.
2009) (holding that defendant was “‘under a criminal justice sentence’ . . .
because he was then serving an actual term of probation” (emphasis
added)); United States v. Lizarraga-Carrizales, 757 F.3d 995, 1000 (9th
Cir. 2014) (holding that § 4A1.1(d) applied to defendant “serving a
criminal justice sentence”); United States v. Yepez, 704 F.3d 1087, 1099
(9th Cir. 2012) (Wardlaw, J., dissenting) (explaining that § 4A1.1(d)
requires judges to “determine whether a defendant is serving a sentence”);
Beverly G. Dyer, Revising Criminal History: Model Sentencing
Guidelines §§4.1-4.2, 18 FED. SENT. R. 373, 375 n.7 (June 2006)
(explaining that § 4A1.1(d) applies to “any criminal justice sentence that
the defendant is still serving” (emphasis added)).
20 UNITED STATES V. MADRID-BECERRA
generally serving his sentence of incarceration. Yet, here,
Appellant was neither serving nor required to serve his
sentence at all. Rather, “affirmative conduct by the state
reliev[ed] [Appellant] of his penal obligation.” See United
States v. Thompson, 925 F.2d 234, 235–36 (8th Cir. 1991).
That § 4A1.1(d) applies to a defendant on “escape status”
clarifies the point. Although an escapee ceases to serve his
sentence—which is tolled until recapture—he remains “under
a requirement to serve [that] sentence.” See Damon, 127 F.3d
at 147. Thus, the Guidelines make clear that although an
escapee is no longer “under” his sentence in the usual
sense—that is, by being subject to the punishment
imposed—he is still “under” that punishment because he has
not been excused from serving it. Cf. United States v. Phipps,
68 F.3d 159, 163 (7th Cir. 1995) (explaining in the context of
a related guideline that “work release, furlough, and escape
status all are periods of freedom that are supposed to be
followed by time behind bars, with a guard outside the
door”); United States v. Buchanan, 638 F.3d 448, 453 (4th
Cir. 2011) (explaining the “strong federal policy disfavoring
fugitives” that “arises from the ‘deeply rooted’ maxim ‘that
no man may take advantage of his own wrong.’” (quoting
Glus v. Brooklyn East. Dist. Term., 359 U.S. 231, 232
(1959)).
And that observation points to a broader structural truth
about the Guidelines: in general, where § 4A1.1(d) is
supposed to apply to a defendant who is not currently serving
his sentence, the Guidelines expressly say so. See United
States v. Herrera, 974 F.3d 1040, 1048 (9th Cir. 2020)
(interpreting the Guidelines by applying the “well-accepted”
rule “that ‘a negative inference may be drawn from the
exclusion of language from one statutory provision that is
UNITED STATES V. MADRID-BECERRA 21
included in other provisions of the same statute’” (quoting
Hamdan v. Rumsfeld, 548 U.S. 557, 578 (2006)). In addition
to identifying “escape status” as a “criminal justice sentence,”
for example, § 4A1.1(d) also expressly applies to sentences
stayed pending appeal, U.S.S.G § 4A1.2(l), outstanding
violation warrants “even if [the] sentence would have expired
absent such warrant,” id. § 4A1.2(m), and to defendants who
fail to report for service of a sentence, id. § 4A1.2(n). Those
provisions support a “negative inference” that unless stated
otherwise, § 4A1.1(d) does not apply to a defendant who is
not serving or under an obligation to serve his sentence. See
Herrera, 974 F.3d at 1048. And since the Guidelines
nowhere mention circumstances remotely analogous to those
at issue here, that inference ought to apply.
Finally, the purposes served by § 4A1.1(d) do not support
its application here. See, e.g., Franco-Flores, 558 F.3d at 981
(applying § 4A1.1(d) in part because doing so “comport[ed]
with the U.S. Sentencing Guidelines’ expressed purpose[s]”).
This Court has explained that “Sections 4A1.1(a)–(c)
correlate to the seriousness of a prior offense, while section
4A1.1(d) addresses, in part, the recency of the crime.” United
States v. McCrudden, 894 F.2d 338, 339 (9th Cir. 1990); see
also United States v. Pearson, 312 F.3d 1287, 1291 (9th Cir.
2002) (Berzon, J., dissenting) (explaining that § 4A1.1(d)
provides a “measure of recency”). In other words, the
provision punishes “an offender who again violates the law
before fully serving his prior punishment.” McCrudden,
894 F.2d at 339. But here, the Arizona statute did not allow
Appellant to fully serve his prior punishment. As Defendant
points out, by the time he illegally reentered in June 2016, his
sentence of “2.5 years custody” would have been more than
fully served. Indeed, by the majority’s logic, even if
Appellant had illegally reentered decades after his release, he
22 UNITED STATES V. MADRID-BECERRA
would still be subject to the two-point enhancement. That
seems to go well beyond § 4A1.1(d)’s focus on the “recency
of the crime.” See id.
Nor does Appellant’s early release reflect a judgment
about the seriousness of his offense. See U.S.S.G. § 4A1.1,
Background (suggesting that the criminal history categories
measure “past crime seriousness”). In fact, just the opposite:
more serious offenders were precluded from release under the
statute. See Ariz. Rev. Stat. § 41-1604.14 (prohibiting those
convicted of class one and class two felonies from being
eligible) (repealed Aug. 6, 2016). As Appellant explains, at
its core Arizona’s program was a cost-saving measure
designed to avoid “the cost of incarcerating [aliens] for the
entirety of their sentence.” And as the government concedes,
the repeal of that program “was intended to ensure inmates
subject to deportation served more, not less, of their
sentences.” (emphasis added). In short, Appellant’s early
release was no indication of his “past crime seriousness.” See
U.S.S.G. 4A1.1, Background. As the Second Circuit
observed in a related context, “[i]f the duration of an
indefinite probation term were determined by some authority
other than the sentencing court (such as the State’s
department of probation), it might be argued that . . . [it] did
not reflect the severity of the sentence as viewed by the
sentencing court and therefore should not qualify” as a
countable prior sentence. See United States v. Tomasi,
313 F.3d 653, 658 (2d Cir. 2002). That reasoning applies
well here.
The majority argues that Appellant was under a criminal
justice sentence because he was “subject to any condition that
related to a ‘custodial or supervisory component’ of his
sentence.” But it cites no authority for such a rule, which at
UNITED STATES V. MADRID-BECERRA 23
any rate finds no support in the text. A “criminal justice
sentence” is certainly “a sentence . . . having a custodial or
supervisory component,” U.S.S.G. § 4A1.1(d), cmt. 4, but the
Guidelines nowhere suggest that a defendant is “under” such
a sentence if he is “subject to any condition related to” it.
The majority also points to several cases that it claims
support its position, but each involve a defendant who was
either serving or obligated to serve his sentence at the time of
his federal offense. In Ramirez-Sanchez, for example, the
defendant was serving a three-year term of probation when he
illegally reentered the country. 383 F.3d at 979–81 (holding
that Appellant was under a criminal justice sentence because
he had been “sentenced to a term of ‘probation,’” and was
still “on probation when he commit[ed] the instant offense”);
United States v. Ramirez-Sanchez, Defendant-Appellant’s
Opening Brief, 2002 WL 32102836, *4 (May 21, 2002)
(noting that defendant was sentenced to “3 years probation,
83 days custody, credit for time served”). Likewise, in
Gonzalez, the defendant was serving a fixed term of non-
revocable parole at the time of his illegal reentry. 739 F.3d
at 423–24. And in McCrudden, the defendant was serving a
two-year term of unsupervised probation at the time of his
offense. 894 F.2d at 339.4 Those cases are not only
distinguishable, then, but in fact support the very argument
made here.
4
The opinion in Franco-Flores, 558 F.3d at 981–82, on which the
majority also relies, does not state whether the deferred sentence at issue
was for a fixed period. Notably, however, the defendant there was subject
to the express provision regarding violation warrants, discussed above.
See U.S.S.G. § 4A1.2(m).
24 UNITED STATES V. MADRID-BECERRA
A “criminal justice sentence” is, at its foundation, “a
sentence.” U.S.S.G. § 4A1.1(d), cmt. 4; see also Antonin
Scalia and Bryan A. Garner, Reading Law: The Interpretation
of Legal Texts § 36, at 232 (2012) (“[T]he word being defined
is the most significant element of the definition’s context
. . . .”). That is, it is “the punishment imposed on a criminal
wrongdoer” by a “judgment that a court formally
pronounces.” SENTENCE, Black’s Law Dictionary (11th ed.
2019). But as in most jurisdictions, Arizona courts are not
authorized to impose indefinite punishments. As relevant
here, a “sentence of imprisonment for a felony shall be a
definite term of years . . . [under] the custody of the state
department of corrections.” Ariz. Rev. Stat. § 13-701(emphasis added). Appellant’s sentence was “2.5 years
custody,” which was the term required by law for his offense
and status. See id. § 13-702. If Appellant’s early conditional
release was a part of that punishment, it could only last for
“2.5 years” and would have expired well before his illegal
reentry; if it was not a punishment at all, it could not, by
definition, be a “criminal justice sentence.” Either way,
§ 4A1.1(d) would be inapplicable.
I respectfully dissent.