United States v. Moises Catalan

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA , No. 11-50318
Plaintiff-Appellee,
D.C. No.
v. 2:11-cr-00274-JHN-1
MOISES VASQUEZ CATALAN ,
AKA Moises Catalan, AKA OPINION
Roman Hernandez Rivera,
AKA Moises Catalan
Vasquez,
Defendant Appellant.
Appeal from the United States District Court
for the Central District of California
Jacqueline H. Nguyen, District Judge, Presiding
Argued and Submitted June 6, 2012
Resubmitted November 19, 2012
Pasadena, California
Filed November 19, 2012
Before: Alex Kozinski, Chief Judge, Stephen S. Trott
and Sidney R. Thomas, Circuit Judges.
Per Curiam Opinion
2 UNITED STATES V . CATALAN
SUMMARY*
Criminal Law
Vacating a sentence for illegal reentry and remanding, the
panel held that a November 1, 2012, amendment to the
Sentencing Guidelines clarified, rather than altered, existing
law in providing that a probation revocation sentence served
after deportation should not be used to calculate the “sentence
imposed” under U.S.S.G. § 2L1.2(b)(1).
The panel therefore applied the amendment retroactively
and concluded that the district court erred in imposing a 16-
level enhancement under U.S.S.G. § 2L1.2(b)(1)(A) rather
than a 12-level enhancement under U.S.S.G.
§ 2L1.2(b)(1)(B).
COUNSEL
Anthony Eaglin, Los Angeles, CA, attorney for appellant.
André Birotte Jr., Robert E. Dugdale, Jean-Claude André,
United States Attorney’s Office, Los Angeles, CA, attorneys
for appellee.
*
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 . CATALAN 3
OPINION
PER CURIAM:
We consider in this appeal whether a “sentence imposed”
pursuant to section 2L1.2(b)(1) of the United States
Sentencing Guidelines includes a probation revocation
sentence served after the defendant was deported. Moises
Vasquez Catalan argues that the district court incorrectly
calculated his advisory guidelines range by imposing a 16-
level enhancement, rather than a 12-level enhancement,
pursuant to section 2L1.2(b)(1). The Sentencing Commission
recently clarified that a probation revocation sentence served
after deportation should not be used to calculate the “sentence
imposed” under section 2L1.2(b)(1). Applying this
amendment retroactively, we vacate Catalan’s sentence and
remand for resentencing.
I
In 2007, Catalan was convicted of possession for sale of
a controlled substance in violation of California law. A state
judge sentenced him to serve 180 days in jail followed by 36
months probation. As soon as Catalan completed his jail
sentence, he was deported to Mexico. He subsequently
entered the United States illegally.
Two years later, California police arrested Catalan for
driving without a license. A court sentenced him to 60 days
in jail for providing a false name to police. At the time,
Catalan was still on probation for his 2007 drug trafficking
offense. While Catalan was in jail, the state court revoked his
probation and sentenced him to serve an additional 360 days
4 UNITED STATES V . CATALAN
in jail. After Catalan completed his sentence, he was
transferred to federal custody. Catalan pleaded guilty to
illegal reentry in violation of 8 U.S.C. § 1326.
Section 2L1.2(b)(1) of the Guidelines provides for a 16-
level enhancement if “the defendant previously was
deported . . . after . . . a conviction for a felony that is . . . a
drug trafficking offense for which the sentence imposed
exceeded 13 months . . . .” Id. § 2L1.2(b)(1)(A). If the
“sentence imposed” for a drug trafficking offense “was 13
months or less,” a 12-level enhancement applies. Id.
§ 2L1.2(b)(1)(B).
Catalan argued that the “sentence imposed” included only
his 180-day sentence imposed prior to deportation, and not
the 360-day sentence imposed when the state court revoked
his probation following his illegal reentry. But the district
court held that the “sentence imposed” included the probation
revocation sentence Catalan served after his deportation and
subsequent illegal reentry. Thus, the court found that
Catalan’s sentence exceeded 13 months and applied the 16-
level enhancement. The court sentenced Catalan to 27
months in prison.
II
When Catalan was sentenced, the question of whether
section 2L1.2(b)(1)’s reference to a “sentence imposed”
included a probation revocation sentence served after
deportation was unresolved in this Circuit. Other courts were
divided on the issue. The district court followed the Second
Circuit, which had held that “sentence imposed” included a
revocation sentence imposed after deportation because the
UNITED STATES V . CATALAN 5
“amended sentence, whenever imposed, relates back” to a
conviction imposed prior to deportation. United States v.
Compres-Paulino, 393 F.3d 116, 118 (2d Cir. 2004) (per
curiam). In contrast, the Fifth, Seventh, Tenth, and Eleventh
Circuits had held that a “sentence imposed” includes only the
sentence imposed prior to deportation. See United States v.
Bustillos-Pena, 612 F.3d 863 (5th Cir. 2010); United States
v. Lopez, 634 F.3d 948 (7th Cir. 2011); United States v.
Rosales-Garcia, 667 F.3d 1348 (10th Cir. 2012); United
States v. Guzman-Bera, 216 F.3d 1019 (11th Cir. 2000). The
Tenth Circuit, for instance, reasoned that “the best
understanding of § 2L1.2 incorporates a temporal restraint
with regard to the imposition of the defendant’s earlier
sentence.” Rosales-Garcia, 667 F.3d at 1355.
Recognizing this ambiguity, the Sentencing Commission
recently clarified the interpretation in Amendment 764 to the
Guidelines, which became effective November 1, 2012. The
commentary to section 2L1.2 now states: “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.” U.S.
Sentencing Guidelines Manual § 2L1.2 cmt. app. n.1(B)(vii)
(2012) (emphasis added to reflect amendment).
When an amendment to the Guidelines clarifies, rather
than alters, existing law, we use the amendment to interpret
the Guidelines provision retroactively. United States v.
Morgan, 376 F.3d 1002, 1010 (9th Cir. 2004); U.S.
Sentencing Guidelines Manual § 1B1.11(b)(2) (providing that
a court applying a prior Guidelines Manual “shall consider
subsequent amendments, to the extent that such amendments
6 UNITED STATES V . CATALAN
are clarifying rather than substantive changes”). “‘An
amendment that resolves a circuit split generally clarifies and
does not modify existing law.’” Morgan, 376 F.3d at 1013(quoting United States v. Sanders, 67 F.3d 855, 857 (9th Cir.
1995)).
Here, the Sentencing Commission stated that the
amendment “responds to a circuit conflict” and discussed
Bustillos-Pena, Lopez, Rosales-Garcia, Guzman-Bera, and
Compres-Paulino. U.S. Sentencing Guidelines Manual supp.
app. C at 11-12 (2012). The Commission stated that the
amendment “resolves the conflict.” Id. at 11. The
amendment thus clarified, rather than altered, the relevant
provision of section 2L1.2(b)(1). See United States v.
Christensen, 598 F.3d 1201, 1206 (9th Cir. 2010); Morgan,
376 F.3d at 1013-14.
Pursuant to the amendment, which we apply retroactively,
we hold that the district court erred in imposing a 16-level
enhancement under section 2L1.2(b)(1)(A), rather than a 12-
level enhancement under section 2L1.2(b)(1)(B).
VACATED and REMANDED.